- 1 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 803 OF 2013 (DEC) BETWEEN: SRI CHOWDAPPA S/O LATE SEENANAIKA, AGED ABOUT 35 YEARS, RESIDENT OF HIREMYTHE VILLAGE, KEREHALLI HOBLI, HOSANAGAR-577418 SHIMOGA DISTRICT. …APPELLANT (BY SRI. S V PRAKASH., ADV.) Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 AND: 1. MANJANAIKA @ DODDA S/O LATE CHOWDANAIKA, AGED ABOUT 79 YEARS, R/AT HIREMYTHE VILLAGE, KEREHALLI HOBLI, HOSANAGAR-577418 SHIMOGA DISTRICT. 2. SANAHUDUGA @ SANNAMANJANAIKA, SINCE DECEASED BY HIS LRS 2(a) SUBRAMANYA, S/O SANAHUDUGA @ SANAMANJANAIKA, AGED ABOUT 48 YEARS, RESIDENT OF HIREMYTHI POST, KOTE THARIGA TALUK, HOSANAGAR-577418 SHIMOGA DISTRICT. 3. GANESHANAIKA S/O LATE CHOWDANAIKA, AGED ABOUT 72 YEARS, RESIDENT OF HIREMYTHI, POST KOTE THARIGA TALUK, HOSANAGAR-577418 - 3 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 SHIMOGA DISTRICT. 4. ESHWARAPPA S/O CHOWDANAIKA, AGED ABOUT 69 YEARS, RESIDENT OF HIREMYTHI, POST KOTE THARIGA TALUK, HOSANAGAR-577418 SHIMOGA DISTRICT. 5. YELLAPPA S/O CHANDANAIKA, AGED ABOUT 62 YEARS, RESIDENT OF HIREMYTHI, POST KOTE THARIGA TALUK, HOSANAGAR-577418 SHIMOGA DISTRICT. 6. JANAKAPPA S/O LATE CHOUDANAIKA, AGED ABOUT 53 YEARS, RESIDENT OF HIREMYTHI, POST KOTE THARIGA TALUK, HOSANAGAR-577418 SHIMOGA DISTRICT. - 4 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 7. SMT.GANGAMMA W/O CHENNAVEERANAIKA, AGED ABOUT 63 YEARS, RESIDENT OF HIREMYTHI, POST KOTE THARIGA TALUK, HOSANAGAR-577418, SHIMOGA DISTRICT. …RESPONDENTS (BY SRI. VEERENDRA R PATIL, ADV. FOR R1, R1(A), R3, R4, R5, R6 & R7 ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 5.1.2013 PASSED IN R.A.NO.31/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., SAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 26.5.2010 PASSED IN OS.NO.41/2005 ON THE FILE OF THE CIVIL JUDGE & JMFC., HOSANAGAR, AND ETC., THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 05.01.2013 passed in R.A.No.31/2010 by the learned Senior Civil Judge and JMFC, at Sagar. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the plaintiff, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal, are as follows: The plaintiff filed a suit for declaration of title, and rectification of the registered partition deed No.100/1977-78, dated 04.06.1977. It is the case of the plaintiff that the plaintiff is the member of Hindu Joint - 6 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 family, and the sister Jayamma was given in marriage. The father of the plaintiff and the defendants are the joint family members. The suit schedule property along with other properties belongs to one Beeramma, who is the grand mother of the plaintiff and mother of defendant No.1. The father of the plaintiff Seenanaika, and defendant No.1 are the own brothers and they are children of Chowdanaika. During the lifetime of his grandfather Chowdanaika, there was a partition regarding the joint family property, which was reduced into writing on 10.06.1975, and all the shareholders have affixed their signatures with a free consent. All the sharers agreed that the documents to be registered in future and accordingly, the said document was reduced to writing on 10.06.1975. As per the memorandum of partition dated 10.06.1975, Seenanaika was allotted with the property in Sy.No.9 of Hiremaithe Village, which measures 1 acre 17 guntas of wet land. The father of the plaintiff took the possession of the said property, and enjoyed the same till his death. - 7 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 After his death, the plaintiff has succeeded to the suit schedule property, and they are enjoying the property. It is also contended that after the demise of Chowdanaika, defendant No.1 being the eldest member of the family, he managed the property allotted to the share of plaintiff’s father and the mother of the plaintiff was a young lady and she has no worldly knowledge and she is an illiterate. Defendant No.1 executed a registered partition deed on 04.06.1977. On 12.04.2004, the defendant had filed a suit in O.S.No. 42/2004 against the plaintiff seeking a relief of permanent inaction regarding the land in Sy.No.9 of Hiremaithe village, which measures 2 acres of wet land against the plaintiff and his family members. The plaintiff came to know that 10 guntas of land in Sy.No.9 fell to the share of defendant No.1 under a registered partition deed dated 04.06.1977. The plaintiff obtained the original deed from Smt.Beeramma, and verified the same and came to know that defendant No.1 has falsely, and fraudulently represented the mother of the plaintiff with the other - 8 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 defendants by showing that as per the earlier partition dated 10.06.1975 registered partition deed was executed. Hence, the partition deed dated 04.06.1977 is unequal. The share allotted under the said document is unequal and hence, defendant No.1 played a fraud on the mother of the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for a declaration of title and rectification of a partition deed dated 04.06.1977. Hence, prays to decree the suit. 3.1. Defendant No.1 filed a written statement denying the averments made in the plaint, and contended that there was a partition effected in 1975, and the memorandum of partition was executed and it was also agreed that, in future, the parties should execute a registered partition deed in terms of memorandum of partition of 1975. After the execution of memorandum of partition of 1975, the parties have executed a registered partition deed on 04.06.1977. Defendant No.1 filed a suit - 9 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 in O.S.No.42/2004 against the plaintiff, and the mother of the plaintiff. The said suit was decreed. The partition deed was executed on 04.06.1977 and the suit was filed in the year 2005 and the suit filed by the plaintiff is barred by limitation and accordingly, pays to dismiss the suit. 3.2. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether the plaintiff proves that there was a partition in the joint family on 10.06.1975 as alleged? 2) Whether plaintiff proves that, the partition deed dated 04.06.1977 at S.R.O.No.100/77- 78 is without the free consent of the mother of the plaintiff? 3) Whether plaintiff proves that, he is the owner of the suit schedule property? 4) Whether the plaintiff is entitled for the relief of declaration as prayed? 5) Whether plaintiff is entitled for the relief of rectification of partition deed dated 04.06.1977 as alleged? 6) What order or decree? - 10 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 3.3. The plaintiff, to substantiate his case, examined himself as PW.1, examined four witnesses as PW.2 to PW.5, and marked 22 documents as Exs.P1 to P22. In rebuttal, defendant No.1 examined his son as G.P.A. as DW.1, and marked three documents as Exs.D1 to D3. 3.4. The Trial Court, after recording the evidence of the parties, hearing both sides, and after assessing the verbal and documentary evidence, answered issue Nos.1 to 5 in the affirmative, and issue No.6 as per final order. The suit of the plaintiff was decreed vide judgment dated 26.05.2010. The plaintiff was declared as the absolute owner to the suit schedule property. Further ordered to rectify the registered partition deed bearing S.R.O.No.100/1977-78 dated 04.06.1977 by adding the suit schedule property into the share of the plaintiff and his family. 3.5. Defendant No.1, aggrieved by the judgment and decree passed in O.S.No.41/2005, preferred an appeal - 11 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 in R.A.No.31/2010 on the file of the learned Senior Civil Judge and JMFC, Sagar. 3.6. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the appellant-defendant proves that the judgment and decree passed by the learned Civil Judge (Jr.Dn.) and JMFC, Hosanagar in O.S.No.41/2006 dated 26.05.2010 is perverse, illegal, arbitrary and calls for interference by this Court? 2) What order? 3.7. The First Appellate Court, on hearing the parties and after re-appreciating the verbal and documentary evidence, answered point No.1 in the affirmative, and point No.2 as per final order. The First Appellate Court allowed the appeal with costs vide judgment dated 05.01.2013 and consequently, set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiff. - 12 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 3.8. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.31/2010, filed this Regular Second Appeal. 4. This Court, on 26.07.2021, admitted the appeal to consider the following substantial questions of law: 1. Whether the finding recorded by the First Appellate Court with regard to issue No.3 in O.S.No.41/2005 is just and proper? 2. Whether the finding recorded by the First Appellate Court on rectification of partition deed dated 04.06.1977 requires reconsideration in this appeal? 5. Heard the arguments of the learned counsel for the plaintiff. 6. Learned counsel for the plaintiff submits that, the partition deed dated 04.06.1977 was effected when the plaintiff was a minor. The said partition was unequal. He submits that the plaintiff came to know about the said fact when defendant No.1 filed a suit for permanent - 13 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 injunction. Hence, immediately the plaintiff obtained the copy of the partition deed from Smt. Beeramma and the plaintiff came to know that the partition effected in 1977 was unequal. He submits that the plaintiff filed a suit within three years from the date of knowledge and he also submits that the said aspect was not properly appreciated by the First Appellate Court and it committed an error in reversing the judgment and decree passed by the trial Court. Hence, on these grounds, he prays to allow the appeal. 7. None appears for the defendants. 8. Perused the records, and considered the submissions of the learned counsel for the plaintiff. 9. Reg. Substantial Question of Law Nos.1 & 2: Substantial question of law Nos.1 and 2 are interlinked with each other, and they are taken together for a common discussion to avoid the repetition of facts. - 14 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 10. There is no dispute regarding the relationship between the parties to the petition. The plaintiff to substantiate his case, examined himself as PW.1. He reiterated the plaint averments in the examination-in- chief, and in order to prove that there was a partition effected on 04.06.1977 under a registered partition deed which was unequal. It is deposed that at the time of alleged partition, the plaintiff was a minor and the mother of defendant No.1 by playing fraud on the mother of the plaintiff got executed a registered partition deed dated 04.06.1977. It is also deposed that the plaintiff came to know about the said fact when the plaintiff has received the summons from the Civil Court in O.S.No.42/2004. Immediately, the plaintiff approached Smt. Beeramma, and obtained a copy of the partition deed and then the plaintiff came to know about the unequal share. Hence, the plaintiff filed a suit for declaration of title and rectification of a partition deed dated 04.06.1977, and to substantiate his case, produced the documents marked as - 15 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 Exs.P1 to P22 and the plaintiff also examined four witnesses as PW2 to PW5, who have deposed in the same lines of PW1. 11. In rebuttal, defendant No.1 examined his son as GPA holder as DW1 and he reiterated the written statement averments in the examination-in-chief, and marked three documents as Exs.D1 to D3. 12. From the perusal of the entire evidence on record, it is clear that the plaintiff at one stretch, he claims to be the absolute owner of the suit schedule property based on the registered partition deed dated 04.06.1977 and at another stretch, the plaintiff claims that the property which was allotted to the plaintiff is allotted to the shares of the parties under the registered partition deed dated 04.06.1977 which is unequal. Admittedly, the mother of the plaintiff was the party to the registered partition deed dated 04.06.1977. Admittedly, as of the date of execution of the registered partition deed dated - 16 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 04.06.1977, the plaintiff was a minor. Although the plaintiff attained the age of majority, the plaintiff did not challenge the partition deed. The plaintiff has filed a suit when he was aged about 28 years. The plaintiff did not file a suit for re-opening of the partition after attaining the age of majority within three years. As per Article 60 of the Limitation Act, 1963 deals with period of limitation for setting aside a transfer of the property made by the guardian of a ward i.e., by the ward, who has attained the majority within three years, when the ward attains majority. 13. Admittedly, in the instant case, the plaintiff even after attaining the age of majority has not filed a suit for re-opening of the partition. From the perusal of the record, it clearly discloses that the parties have acted upon the partition deed dated 04.06.1977. If the partition effected on 04.06.1977 was unequal, the plaintiff would have filed the suit for reopening of the partition. On the contrary, the plaintiff has filed a suit for partition deed, - 17 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 and also sought a relief for a declaration of title based on the registered partition deed dated 04.06.1977. The plaintiff cannot take inconsistent stands. It is well settled law that the defendants can take an inconsistent plea, but not the plaintiff, in view of the proposition of law laid down by the Hon'ble Apex Court in case of SUZUKU PARASRAMPURIA SUITING PRIVATE LIMITED VS. OFFICIAL LIQUIDATOR OF MAHENDRA PETROCHEMICALS LIMITED (IN LIQUIDATION) AND OTHERS reported in (2018) 10 SCC 707. However the First Appellate Court has also recorded a finding that the plaintiff has not shown any material evidence before the Court that the partition deed dated 04.06.1977 is a fraudulent document, and the mother of the plaintiff has clearly admitted that she has attested her LTM by knowing the contents, and the mother of the plaintiff has not raised any objection before any other authority saying that defendant No.1 played fraud on her. The First Appellate Court has rightly considered, and rightly re-appreciated the entire evidence and has rightly - 18 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 passed the impugned judgment. Although the plaintiff pleaded that the partition effected is unequal and the same has to be rectified. As observed above, at one stretch, the plaintiff claims to be the absolute owner of the property under the partition deed dated 04.06.1977, and at another stretch, he says that the said partition is unequal. The trial Court framed Issue No.3, which reads as thus: “Whether the plaintiff proves that, he is the owner of the suit schedule property?”. The said issue was answered in the affirmative. The First Appellate Court has rightly recorded the finding of fact that the plaintiff is not the absolute owner of the property by virtue of the partition deed dated 04.06.1977 and the said partition deed was registered. The First Appellate Court was justified in recording the finding regarding issue No.3 in O.S.No.41/2005 which is just and proper. The First Appellate Court was justified in recording a finding regarding the partition deed dated 04.06.1977, and the said finding do not require reconsideration in this appeal. - 19 - HC-KAR NC: 2026:KHC:9127 RSA No. 803 of 2013 In view of the above discussion, I answer substantial question of law No.1 in the affirmative, and substantial question of law No.2 in the negative. 15. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgment and decree dated 05.01.2013 passed in R.A.No.31/2010 by the learned Senior Civil Judge and JMFC, at Sagar, is hereby confirmed. iii. No order as to the costs. iv. Pending applications, if any, stand disposed off accordingly. Sd/- (ASHOK S.KINAGI) JUDGE SSB