- 1 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 950 OF 2013 (PAR) BETWEEN: 1. SRI GOWDE GOWDA S/O NANJEGOWDA @ APPAJI GOWDA AGED ABOUT 54 YEARS R/O HITHALA ALADAHALLI MEDENUR POST SHANTHIGRAMA HOBLI HASSAN TALUK HASSAN-573201 2. SRI KRISHNAPPA S/O NANJEGOWDA @ APPAJI GOWDA SINCE DEAD BY HIS LEGAL REPRESENTATIVES 2(A) SHAKUNTALA W/O LATE KRISHNAPPA AGED ABOUT 55 YEARS 2(B) CHETANA H.K. D/O LATE KRISHNAPPA AGED ABOUT 30 YEARS 2(C) CHAITRA H K D/O LATE KRISHNAPPA AGED ABOUT 28 YEARS 2(D) CHANDANI H.K. D/O LATE KRISHNAPPA AGED ABOUT 26 YEARS Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 2(E) BENAKA H.K. S/O LATE KRISHNAPPA AGED ABOUT 23 YEARS ALL ARE R/AT H. ALADAHALLI VILLAGE MADENUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DISTRICT – 573 225. 3. SRI CHANDRE GOWDA S/O NANJEGOWDA @ APPAJI GOWDA AGED ABOUT 48 YEARS 4. SRI YOGANNA S/O NANJEGOWDA @ APPAJI GOWDA AGED ABOUT46 YEARS 5. 5(A) SRI RAME GOWDA S/O GOWDE GOWDA SINCE DEAD BY LRS SRI ANNE GOWDA S/O LATE RAMEGOWDA SINCE DEAD BY LEGAL HEIRS 5(A)(I) MAHESH H A S/O LATE ANNEGOWDA AGED ABOUT 48 YEARS 5(A)(II) PARATHA H A S/O LATE ANNEGOWDA AGED ABOUT 40 YEARS BOTH ARE R/AT No.6, H. ALADAHALLI VILLAGE MADENUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DISTRICT – 573 225. - 3 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 5(A)(III) KAVITHA H A W/O LAKSHMEGOWDA D/O LATE ANNEGOWDA AGED ABOUT 46 YEARS R/AT No.1785, 7TH CROSS 5TH BLOCK, SRI. M V LAYOUT BENGALURU – 560 056 5(A)(IV) RAMYA H A W/O SATHISH M S D/O LATE ANNEGOWDA AGED ABOUT 40 YEARS R/AT No.5, KUVEMPU NAGAR CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116 5(B) SRI LINGANNAIAH S/O LATE RAMEGOWDA AGED ABOUT 57 YEARS HITHALA ALADAHALLI MEDENUR POST SHANTHIGRAMA HOBLI HASSAN TALUK HASSAN-573201 5(C) SMT THAYAMMA W/O SUBBEGOWDA SINCE DEAD BY LEGAL REPRESENTATIVES 5(C)(I) SUBBEGOWDA S/O LATE KRISHNEGOWDA AGED ABOUT 70 YEARS R/AT GOPANA HALLI VILLAGE HERGUR POST, DUDDA HOBLI HASSAN TALUK AND DISTRICT – 573 118 5(C)(II) PANDU G S S/O SUBBEGOWDA AGED ABOUT 55 YEARS R/AT GOPANA HALLI VILLAGE HERGUR POST, - 4 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 DUDDA HOBLI HASSAN TALUK AND DISTRICT – 573 118 5(C)(III) JAYALAKSHMI D/O SUBBEGOWDA AGED ABOUT 53 YEARS R/AT HITHALA ALADAHALLI MADENUR POST SHANTHIGRAMA HOBLI HASSAN TALUK HASSAN-573201 5(C)(IV) MAHESH G S S/O SUBBEGOWDA AGED ABOUT 48 YEARS R/AT NO, 1785, 7TH CROSS 5TH BLOCK, SRI. M V LAYOUT BENGALURU – 560 056 5(C)(V) VENKATESH G S S/O SUBBEGOWDA AGED ABOUT 42 YEARS R/AT No.263/33, AMBIKANAGAR NEAR ADARSHANAGAR ARASINAKUNTTE NELAMANGALA BENGALURU RURAL DISTRICT – 562 123 5(D) SMT KAMALAMMA W/O DORESWAMY D/O RAMEGOWDA AGED ABOUT 51YEARS R/O MYNAHALLI DUDDA HOBLI HASSAN TALUK HASSAN-573201 …APPELLANTS (BY SRI. R. S RAVI, SR. ADVOCATE FOR SRI. B ROOPESHA & SANDEEP M K., ADVOCATE) - 5 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 AND: 1. SRI MANJANNA S/O LATE THIMMEGOWDA @ PAPANNA AGED ABOUT 49 YEARS R/O HITHALA ALADAHALLI MEDNUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DIST-573201 2. SRI NANJAPPA S/O LATE THIMMEGOWDA @ PAPANNA AGED ABOUT 46 YEARS R/O HITHALA ALADAHALLI MEDENUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DIST-573201 3. SRI NAGARAJA S/O LATE THIMMEGOWDA @ PAPANNA AGED ABOUT 41 YEARS R/O HITHALA ALADAHALLI MEDENUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DIST-573201 4. SRI ANANDA S/O LATE THIMMEGOWDA @ PAPANNA AGED ABOUT 36 YEARS R/O HITHALA ALADAHALLI MEDENUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DIST-573201 5. SRI SUNANDA S/O LATE THIMMEGOWDA @ PAPANNA AGED ABOUT 27 YEARS R/O HITHALA ALADAHALLI MEDENUR POST - 6 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 SHANTHIGRAMA HOBLI HASSAN TALUK AND DIST-573201 6. SMT MANJAMMA D/O LATE THIMMEGOWDA @ PAPANNA AGED ABOUT 52 YEARS R/O HITHALA ALADAHALLI MEDNUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DIST-573201 7. SMT JANAKI D/O LATE THIMMEGOWDA @ PAPANNA AGED ABOUT 48 YEARS R/O HITHALA ALADAHALLI MEDNUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DIST-573201 8. SRI RAJANNA S/O LATE THIMMEGOWDA @ PAPANNA AGED ABOUT 51 YEARS R/O HITHALA ALADAHALLI MEDNUR POST SHANTHIGRAMA HOBLI HASSAN TALUK AND DIST-573201 …RESPONDENTS (BY SRI. K. RAGHAVENDRA RAO., ADVOCATE FOR R1 TO R8) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 15.3.2013 PASSED IN R.A.NO.20/1999 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 2.8.1999 PASSED IN OS.NO.222/1987 ON THE FILE OF CIVIL JUDGE (SR.DN.), HASSAN. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 7 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This regular second appeal is filed by the appellants challenging the judgment and decree dated 15.03.2013 passed in RA No.20/1999 by the Court of the learned Additional District Judge, Hassan (‘First Appellate Court’ for short). 2. For the sake of convenience, the parties are referred to based on their ranking before the Trial Court1. Appellants were the defendants and the respondents were the plaintiffs. 3. Brief facts leading rise to the filing of this appeal are as follows: 3.1. The plaintiffs filed a suit for partition and separate possession before the Trial Court. It is the case of the plaintiffs that, one Annegowda was the original propositus. He had three sons viz., Gowdegowda @ 1 OS No.222/1987 before the Court of the learned Civil Judge (Jr.Dn.), Hassan - 8 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 Thimmegowda, Javaregowda and Kempegowda. Gowdegowda @ Thimmegowda had two sons namely Appajigowda @ Nanjegowda and Ramegowda (defendant No.5). Defendant Nos.1 to 4 are the children of Appajigowda @ Nanjegowda. Javaregowda had two sons namely Thimmegowda @ Papanna and Sannathimmegowda. Plaintiff Nos.1 to 7 are the children of Thimmegowda @ Papanna and plaintiff No.8 is the son of Sannathimmegowda. It is the case of the plaintiffs that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants, they are the members of the Hindu undivided family and no partition was effected between the plaintiffs and the defendants. The plaintiffs demanded for partition and separate possession, but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, pray to decree the suit. - 9 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 3.2. Defendant No.5 had filed a written statement, wherein defendant Nos.1 to 4 had filed a memo adopting the written statement filed by defendant No.5. In the written statement, the defendants have denied the averments made in the plaint and contended that, there was a prior partition in the family of the plaintiffs and the defendants under Panchayat palu patti executed on 24.09.1978. In the said partition, item No.1 Ramana Hola, item No.2 Adlu Hola and item Nos.3, 4, 7, 8, 9, 10, 12, 13, 15, 16, 18, 19, 20 and 21 of the suit schedule properties fell to the share of the father of the defendants Appajigowda @ Nanjegowda; since then, they were in possession and enjoyment of the said properties. It is also contended that, item Nos.2, 5, 17, 22, 27 and 28 of the suit schedule properties fell to the share of the plaintiffs’ grandfather Javaregowda; since then Javaregowda was in possession and enjoyment of the said properties. It is contended that, item No.1 of ‘C’ schedule property fell to the share of the plaintiffs; since then, they are residing in - 10 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 the said suit property. Item No.2 of ‘C’ schedule property fell to the share of the defendants; since then, they are residing in the said house. It is contended that, total extent of the land in item No.10 is 15 acres and the said land was granted through Darkasth by the Government in favour of Nanjegowda @ Appajigowda and the said property was acquired by Nanjegowda @ Appajigowda. The plaintiffs have no right, title or interest to claim any share in item No.10 of the suit schedule properties. It is also contended that, based on the palu patti executed between the parties to the suit, the names of the parties were entered in the revenue records. Hence, the suit for partition and separate possession filed by the plaintiffs is not maintainable. As of the date of filing the suit, the suit schedule properties were not ancestral and joint family properties and the plaintiffs and the defendants were not the members of the Hindu undivided family. Accordingly, pray to dismiss the suit. - 11 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 3.3. The Trial Court, based on the rival pleadings of the parties, had framed the following issues: “1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of themselves and defendants? 2) Whether the defendants prove that items 6, 11, 14 and 23 to 26 of plaint 'A' schedule properties are not the properties belonging to the family of the plaintiffs and defendants? 3) Whether the defendants prove that item No.10 of plaint 'A' schedule properties is the separate and self acquired property of Sri. Nanje Gowda @Appaji Gowda who was the father of defendants 1 to 4?. 4) Whether the plaintiffs prove the existence of plaint 'B' schedule properties and whether they further prove that the said movables are joint family properties of themselves and defendants? 5) Whether the defendants prove that there was partition in the family in the presence of panchayathdars on 24.09.1978 and that the same was evidenced by a Palupatti and that since then the parties have been enjoying the properties separately as detailed in para 14 of the written statement? - 12 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 6) Whether the defendants prove that there was subsequent partition as per Palupatti dated 26.08.1987 amongst the defendants in respect of the properties, which had been allotted to their branch in the family partition? 7) Whether the defendants prove that the suit is bad for non joinder of necessary parties as contended in para 17 of the written statement? 8) To what decree or order the parties are entitled?” 3.4. To substantiate the case of the plaintiffs, plaintiff No.8 was examined as PW2, one Karigowda was examined as PW1 and marked eleven documents as Exs.P1 to P11. In rebuttal, defendant No.5(b) was examined as DW1, examined five witnesses as DW2 to DW6 and marked seventy documents as Exs.D1 to D70. 3.5. The Trial Court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issue No.1 as partly proved, issue No.2 as item Nos.6, 11, 14 and 23 to 26 of the plaint ‘A’ schedule properties are not proved to be the - 13 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 joint family properties, issue Nos.3, 4, 6 and 7 in the negative and issue No.5 in the affirmative, issue No.8 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 02.08.1999. 3.6. The plaintiffs, aggrieved by the dismissal of the suit by the Trial Court in OS No.222/1987, preferred an appeal before the First Appellate Court in RA No.20/1999. 3.7. The First Appellate Court, after hearing the learned counsel for the parties, had framed the following points for consideration: “1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties? 2) Whether the defendants prove that there was already partition taken place as per Ex.D.23 and Ex.D.24? 3) Whether the plaintiffs are entitled for mesne profits? 4) Whether the Trial Court is justified in dismissing the suit of the plaintiffs? 5) Whether the interference of this Court is necessary? - 14 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 6) What Order?” 3.8. The First Appellate Court, after re-appreciating the entire evidence on record, answered point No.1 in the affirmative, except item No.6, 14, 20 and 23 to 26 of ‘A’ schedule property, point Nos.2 and 4 in the negative, point Nos.3 and 5 in the affirmative, point No.6 as per the final order. The appeal filed by the plaintiffs was allowed vide judgment dated 15.03.2013, and the judgment and decree passed by the Trial Court in OS No.222/1987 was set aside. Consequently, the suit of the plaintiffs was decreed. It was ordered and decreed that, suit ‘A’ and 'C' schedule properties (excluding the properties stated in item Nos.6, 14, 20, 23 to 26 and the portion of land acquired for the Bengaluru - Hassan Railway Project in item No.10 and 12 of 'A' schedule partitioned property) shall be partitioned between the plaintiffs and defendants by metes and bounds; plaintiff Nos.1 to 7 are entitled to get separate possession of their 1/28th share each in the suit 'A' and 'C' schedule properties (excluding the - 15 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 properties stated in item Nos.6, 14, 20, 23 to 26 and the portion of land acquired for the Bengaluru - Hassan Railway Project in item Nos.10 and 12 of 'A' schedule property) by metes and bounds; plaintiff No.8 is entitled to get separate possession of his 1/4th share in the suit 'A' and 'C' schedule properties (excluding the properties stated in item Nos.6, 14, 20, 23 to 26 and the portion of land acquired for the Bengaluru - Hassan Railway Project in item No.10 and 12 of 'A' schedule property) by metes and bounds; defendant Nos.1 to 4 are entitled to get separate possession of their 1/16th share each in the suit 'A' and 'C' schedule properties (excluding the properties stated in item Nos.6, 14, 20, 23 to 26 and the portion of land acquired for the Bengaluru - Hassan Railway Project in item No.10 and 12 of 'A' schedule property) by metes and bounds on payment of required Court fee; defendant Nos.5(a) to 5(d), who being the legal heirs of defendant No.5 entitled to get separate possession of their 1/16th share each in the suit 'A' and 'C' schedule properties - 16 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 (excluding the properties stated in item No.6, 14, 20, 23 to 26 and the portion of land acquired for the Bengaluru Hassan Railway Project in item No.10 and 12 of 'A' schedule property) by metes and bounds. 4. The defendants, aggrieved by the judgment and decree passed by the First Appellate Court in RA No.20/1999, filed this regular second appeal. 5. Heard the arguments of learned Senior Counsel Sri. R.S.Ravi for the defendants and learned counsel Sri. K.Raghavendra Rao for the plaintiffs. 6. Learned Senior Counsel appearing for the defendants submits that, there was a prior partition in the family of the plaintiffs and the defendants, the documents came to be executed in 1978 and the said documents are marked as Exs.D23 and D24. On the basis of Exs.D23 and D24, the names of the respective parties were entered in the revenue records. He submits that, mutation was effected as per Exs.D1 and D2. He further submits that, - 17 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 the parties have acted upon the partition effected on 24.09.1978. The entries made in the revenue records prove the factum of partition. The First Appellate Court, without considering the said aspect, has committed an error in passing the impugned judgment. He further submits that, the defendants, to prove the factum of partition, had examined witnesses and also scribe. The First Appellate Court has not properly re-appreciated the evidence of witnesses to prove the factum of partition. He further submits that, there was a partition amongst the family members of the plaintiffs. Hence, on these grounds, he prays to allow the appeal. 7. Per contra, learned counsel for the plaintiffs submits that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants, no partition is effected between the plaintiffs and the defendants and they are the members of the Hindu undivided family. He further submits that, the alleged palu patti produced by the defendants has not - 18 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 seen the day of the light. There is no reference about Exs.D23 and D24 in Exs.D1 and D2. He further submits that, Exs.D23 and D24 are on the plain paper; from the perusal of Exs.D23 and D24, it discloses that there are overwritings in the said documents. He submits that, the First Appellate Court has rightly doubted the genuineness of execution of Exs.D23 and D24. He further submits that, from the comparison of the boundaries, it discloses that the boundaries shown in the written statement and the boundaries shown in Exs.D23 and D24 are totally different. The First Appellate Court has rightly passed the impugned judgment. He further submits that, Exs.D1 and D2 are not supported by any documents to prove the factum of partition. To buttress his arguments, he has placed reliance upon the judgment of the Hon’ble Apex Court in the case of Dayaram and Others Vs. Dawalatshah and Others2. He submits that, the First Appellate Court was justified in declining to accept Exs.D1 2 (1971) 1 SCC 358 - 19 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 and D2 on the ground that, the same are not supported by any documents. The order of Revenue Officers in the mutation proceedings based on untrue piece of evidence has no evidentiary value in the civil suit. 7.1. Learned counsel for the plaintiffs submits that, the point regarding partition amongst the family members of the plaintiffs and the defendants was raised before the Trial Court had answered the said issue in the negative, the defendants did not challenge the findings recorded by the Trial Court regarding the alleged partition between the family members of the plaintiffs. He further submits that, the First Appellate Court has affirmed the said finding and the same has attained finality. Hence, the defendants cannot take the said contention before this Court in the regular second appeal without challenging the same by way of filing cross-objection by way of Order XLI Rule 22 of CPC or by filing an independent appeal Order XLI Rule 33 of CPC. Hence, on these grounds, he prays to dismiss the appeal. - 20 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 8. Perused the records and considered the submissions of the learned counsel for the parties. 9. This Court, vide order dated 21.04.2014, admitted the appeal to consider the following substantial questions of law: “(1) Ex.D23 and D24 being palupatti, when admitted by the trial Court for collateral purpose, whether the Lower Appellate Court was justified in rejecting the said two documents as not establishing the factum of prior partition? (2) Whether the Lower Appellate Court, in the facts, circumstances and evidence on record, was justified in recording perverse findings, to reverse the findings of the Trial Court?” Reg. Substantial Questions of Law: 10. Substantial questions of law Nos.(1) and (2) are interlinked, hence, they are taken together for a common discussion to avoid the repetition of facts. 11. The plaintiffs, to substantiate their case, plaintiff No.8 was examined as PW2, who had deposed - 21 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 that, the plaintiffs and the defendants are the members of a Hindu undivided family, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants, and no partition is effected between the parties to the suit; the plaintiffs demanded for partition and separate possession, the defendants refused to effect partition. The plaintiffs had produced the documents to show that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. During the course of cross- examination of PW2, it was suggested that there was a prior partition between the children of original propositus in 1978 and the said partition is reduced into writing in the name and style as “Palu Patti” and based on the palu patti, the names of the parties were entered in the revenue records. The said suggestion was denied by PW2. The plaintiffs had also examined one witness as PW1. PW1 has reiterated the examination-in-chief of PW2. - 22 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 12. In rebuttal, defendant No.5(b) was examined as DW1 and he reiterated the written statement averments in the examination-in-chief and deposed that, there was a prior partition between the children of the original propositus and the properties fell to the share of the children of the original propositus; based on the said partition, the names of the respective parties were entered in the revenue records and to prove the factum of prior partition, the defendants have produced Exs.D23 and D24. The defendants have also produced Exs.D1 and D2 the mutation register extracts, which clearly disclose that there was a partition effected between the parties to the suit. The defendants also examined witnesses to prove the prior partition. 13. From the perusal of the entire evidence on record, main defence of the defendants is that, there was a prior partition between the parties to the suit. From the perusal of Exs.D1 and D2, there is no reference about Exs.D23 and D24. Further, the defendants have not - 23 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 produced any records to demonstrate that the parties have acted upon Exs.D23 and D24. Exs.D23 and D24 have not seen the day of light till they were produced in the suit. Further, there are no pleadings in the written statement regarding the existence of Exs.D23 and D24. 14. The defendants, in the written statement, have taken a contention that, six lands were allotted to Javaregowda, wherein in Ex.D23, there were eight lands allotted to Javaregowda. The difference in Javaregowda’s share is as follows: Javaregowda's share as pleaded in the written statement Javaregowda's share as reflected in the alleged partition deed at Ex.D23 A Schedule Item No.2 (Ramana Hola) (half) Addihalli Gadde Item No.5 Dore Hola Item No.17 (Halethota) Bagemarada Hola Item No.22 Donnappana Hola Item No.27, 28 (Papayyana Gadde) Papayyana Gadde C Schedule Ayyana Hola Item No. 1 - Old house Hale Thota In Adla Hola 3.20 acres to the west Half portion of Old House - 24 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 The difference in Appajigowda @ Nanjegowda’s share as in the written statement and as in Ex.D24 is as follows: Appajigowda @ Nanjegowda's share as pleaded in the written statement Appajigowda @ Nanjegowda's share as reflected in Ex. D24 A Schedule Item No. 1 (Ramana Hola) Rasthe Pakkada Hola Item No. 2 (Aadlu Hola) - half Ramana Hola Item Nos. 3, 4, 7, 8, 9, 10, 12 (Goppammana Hola) Goppammana Hola Item No. 13 (Poojarayyana Hola) Poojarayyana Hola Item No. 15 (Narasayyana Hola) Govinde Gowda Hola Item No. 16 (Govinde Gowdana Hola) Narasayyana Hola Item No. 18 (Karekere Gadde) Adlina Hattira Purvakke Item No. 19 (Karekere Gadde) Karekere Gadde Item No. 20 (Karekere Gadde) Unnanne Gadde Item No. 21 (Unnanne Gadde) Maralu Gadde C Schedule Sarapurada Thota Item No. 2 - New house Kannadalli Uttarakke Ardha Bhaga Newly constructed house From the comparison of the boundaries shown in the written statement filed by defendant No.5 and the - 25 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 boundaries shown in Exs.D23 and D24, they are totally different. 15. Admittedly, in a suit for partition and separate possession, the initial burden is always on the plaintiffs to prove the nature of the suit schedule properties and the relationship between the parties to the suit. Admittedly, there is no dispute regarding the relationship between the parties to the suit and nature of the suit schedule properties. In the case on hand, the defendants have taken a defence that there was a prior partition in the year 1978. Their entire defence is based on Exs.D1, D2, D23 and D24. As observed above, Exs.D23 and D24 have not seen the day of light till they were produced in the suit and they are surrounded by suspicious circumstances as there are over-writings in Exs.D23 and D24. Further, a perusal of Exs.D23 discloses that there was a partition between the family members of the plaintiffs and the defendants. The said document is not supported with any proof of factum of partition. The Hon’ble Apex Court in the - 26 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 case of Dayaram (supra) has held that, “the order of the Revenue Officer in mutation proceedings based on untrue or unproved piece of evidence has no evidentiary value in establishing title in a civil suit”. Admittedly, Ex.D2 is based on untrue piece of evidence. Hence, Ex.D2 has no evidentiary value in a civil suit. Though Exs.D23 and D24 were marked for collateral purpose, the collateral purpose is only to prove the possession. Based on Exs.D23 and D24, it cannot be held that the defendants have proved that there was a prior partition in 1978. From the perusal of Exs.D23 and D24, though it is styled as “Palu Patti”, it does not disclose that there was a prior partition before the execution of the alleged Exs.D23 and D24. If partition was effected on the date of execution of Exs.D23 and D24, it should be treated as partition deed which requires registration under Section 17 of the Registration Act, 1908. The First Appellate Court was justified in passing the impugned judgment and also raising dispute regarding - 27 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 the genuineness of Exs.D23 and D24, has rightly reversed the judgment and decree passed by the Trial Court. 16. In view of the above discussion, I answer the substantial questions of law Nos.1 and 2 in the affirmative. 17. During the pendency of this appeal, the defendants have filed IA No.4/2025 under Order XLI Rule 27 of CPC for production of additional documents. In support of the application, defendant No.5(b) has filed an affidavit contending that, item Nos.1 to 3, 7 to 10, 12, 13, 15, 16, 18 and 20 of suit ‘A’ schedule properties fell to the share of the defendants and half portion in item No.2, item Nos.5, 17, 22, 27 and 28 in suit ‘A’ schedule properties fell to the share of the plaintiffs and item Nos.6, 11, 14 and 23 to 26 are not the joint family properties; partition was taken place between his senior uncle Appajigowda on one side and his junior grandfather Javaregowda on the other side as per the Panchayat palu patti vide Exs.D23 and D24 dated 24.09.1979 and mutation and revenue records was effected based on the said documents. The defendants - 28 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 have produced RTC extracts of the land bearing Sy.No.52/2 for the year 1981-82, mutation extract bearing No.MR 6/02-03 which was effected on 23.12.2002, RTC extract of lands bearing Sy.No.42/2 and 63/1, copy of the index of land, copy of the records of rights, copy of the grant certificate dated 20.10.1986. It is contended that, the said documents could not be produced before the Courts below as the defendants had no knowledge regarding the procedure and to prove that there was prior partition. There was a partition between the family members of the plaintiffs subsequent to the execution of Exs.D23 and D24. 17.1. IA No.4/2025 was opposed by the plaintiffs by filing objections contending that, the said application is filed only with an intention to prolong the proceedings. It is contented that the suit was filed in 1987 and the said defendants have produced the documents after a lapse of 38 years from the date of filing the suit. It is contented that, the case was twice remanded and this appeal is - 29 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 pending since from 2013. It is contended that, the said documents are not relevant for the purpose of deciding this appeal and it is also contended that, the defendants have not fulfilled the required ingredients of Order XLI Rule 27 of CPC. Hence, on these grounds, they pray to reject IA No.4/2025. 17.2. The defendants have contended that there was a partition between the family members of the plaintiffs, the defendants have not made any attempts to produce the documents either before the Trial Court or before the First Appellate Court. Admittedly, the appeal is of filed in 2013 and IA No.4/2025 is filed in 2025 after lapse of 12 years from the date of filing this appeal. The Hon’ble Apex Court has, in the case of N. Kamalam (Dead) and Another Vs. Ayyasamy and Another3, has held that, provision of Order XLI Rule 27 is not designed to help the parties to patch up the weak points in the case and to make up the omission in the Court of appeal; jurisdiction 3 (2001) 7 SCC 503 - 30 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 of the Appellate Court is restricted for permitting such additional evidence as it would enable to pronounce the judgment. Further, the Hon’ble Apex Court has in the case of Zarif Ahmad (D) through LRs and Another Vs. Mohd. Farooq4 held that, Appellate Court must always be cautious about allowing the applications seeking to adduce the additional evidence, particularly in the form of oral evidence, after a long interval between the date of the decree and the application; further, when the application is made after ten years after decree was passed, the High Court has rightly rejected the application. Considering the mandate laid down by the Hon’ble Apex Court in the case of N. Kamalam (supra) and Zarif Ahmad (supra), I do not find any grounds to entertain IA No.4/2025. 18. In view of the above discussion, I proceed to pass the following: ORDER i. The appeal is dismissed; 4 2015 (2) KCCR SN 154 (SC) - 31 - HC-KAR NC: 2026:KHC:28923 RSA No. 950 of 2013 ii. IA No.4/2025 is dismissed; iii. Pending IA(s), if any, shall stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE PA List No.: 2 Sl No.: 2