Research › Search › Judgment

High Court of Karnataka · body

2026 DAILYLAW 47068 (KAR)

SRI D HARIRAO JADHAV v. SHASHANK

RSA/1626/2021 · 2026-01-30

H P Sandesh

body2026

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1626 OF 2021 (PAR) BETWEEN: 1. SRI D HARIRAO JADHAV S/O LATE DASARATH RAO AGED ABOUT 47 YEARS 2. SRI D BABURAO JADHAV S/O LATE DASARATH RAO AGED ABOUT 45 YEARS BOTH ARE R/AT CHOWKAHALLI VILLAGE KASABA HOBLI K R NAGAR TALUK MYSURU DISTRICT-571602 …APPELLANTS (BY SRI SHOWRI H R, ADVOCATE) AND: 1. SHASHANK S/O GANAPATH RAO JADHAV AGED ABOUT 21 YEARS R/AT CHIKKADIGANAHALLI GAVADAGERE HOBLI HUNSUR TALUK-571602 2. SRI GANAPATH RAO JADHAV S/O LATE DASARATH RAO AGED ABOUT 54 YEARS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 3. SMT. B R SUJATHA BAI W/O LATE RAGHU RAO JADHAV AGED ABOUT 45 YEARS 4. R HARSHARAO JADHAV S/O LATE RAGHU RAO JADHAV AGED ABOUT 9 YEARS, MINOR, REP. BY HIS NATURAL GUARDIAN MOTHER SMT. B R SUJATHA BAI RESPONDENTS NO.2 TO 4 ARE R/AT CHOWKAHALLI VILLAGE KASABA HOBLI K R NAGAR TALUK MYSURU DISTRICT-571602 …RESPONDENTS (BY SRI C P PUTTARAJA, ADVOCATE FOR R1; R2 TO 4 ARE SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.12.2020 PASSED IN R.A.NO.72/2018 ON THE FILE OF THE SENIOR CIVIL JDUGE AND JMFC, K.R.NAGAR AND ORDER DATED 21.08.2018 PASSED IN FDP No.8/2012 BY THE PRINCIPLE CIVIL JUDGE AND JMFC, KRISHNARAJANAGAR AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This second appeal is filed challenging the order passed in FDP No.8/2012 wherein the claim made by the petitioner was allowed holding that petitioner and respondent No.1 i.e. father have entitled for final decree in terms of the preliminary decree passed in O.S.No.41/2008 and in Item No.1 of suit property, Sy.No.131/1 measuring 8 guntas, portion of the house property, measuring 2½ guntas as per commissioner report and sketch. In Item No. 2 of suit property, eastern portion of 9½ guntas north-south is hereby allotted to the share of petitioner. In Item No.1 of the suit property, Sy.No.134/1 measuring 8 guntas, 1¾ guntas of house property, ¾ vacant site property as per the commissioner report and sketch. In Item No. 2 of the suit property, western portion of measuring 9½ guntas, north-south is hereby allotted to the respondent No.1. 2. This matter is listed for admission and framed the substantial question of law today. Heard the learned counsel appearing for the respective parties. - 4 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 3. Having perused the order, it discloses that division was made between the petitioner and respondent No.1 that is to an extent of 9½ guntas in respect of Sy.No.134/2 in the FDP proceedings. Respondent No.2 in FDP passed away and her legal heirs are brought on record that is appellants herein. The said order of the FDP was challenged before the First Appellate Court in R.A.No.72/2018 by the appellants herein. The First Appellate Court having considering the material available on record in paragraphs 17 and 18 comes to the conclusion that the land available in Sy.No.134/2 is only 9 guntas i.e., standing in the name of defendant No.1 that is the father of respondent No.1 herein. The First Appellate Court also has taken note of the fact that Ex.P2-RTC also discloses 9 guntas in Sy.No.134/2 standing in the name of defendant No.1 that is father of respondent No.1. So also in Ex.P3-mutation register extract, it discloses that Item No.1 property bearing Sy.No.134/1 is measuring to an extent of 21 guntas and Item No.2 property bearing Sy.No.134/2 is measuring only 9 guntas. Thus, in total, 30 guntas was allotted to the share of defendant No.1. Hence, it is clear that the land allotted in favour of the father of the respondent No.1 herein who is the plaintiff in O.S.No.41/2008 - 5 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 is total extent of 30 guntas other than the property which was alienated. The First Appellate Court also taken note of the admission on the part of PW1 who is the mother/guardian of the plaintiff wherein she has also clearly admitted during her cross examination that Item No.1 of the suit schedule property is measuring 21 guntas and Item No. 2 of the suit schedule property is measuring 9 guntas. However, the Trial Court comes to the conclusion that in the earlier judgment and decree in R.A.No.38/2012 and also the preliminary decree, these appellants have not challenged the same. 4. The learned counsel appearing for the appellants would submit that they are not parties to the said earlier suit and the suit was inter se between the plaintiff and his father for partition. The counsel also brought to notice of this Court that when the First Appellate Court in detail discussed that the total extent of land is only 21 guntas in Sy.No.34/1 and 9 guntas in Sy.No.134/2 and when there was an admission by PW1 that in Sy.No.134/2, the measurement of the land is 9 guntas and in Sy.No.134/1, the measurement of the land is 21 guntas, ought to have allowed the appeal and set it right the same in the - 6 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 judgment and decree of the Trial Court in FDP No.8/2012 only to the extent of 9 guntas in Sy.No.134 /2 and also to the extent of 21 guntas in Sy.No.134/1 and there cannot be a decree more than that extent. The counsel further submits that even noticing the same, dismissed the appeal only on the reasons that the earlier judgment and decree in O.S.No.41/2008 was attained finality and so also R.A.No.38/2012 was also dismissed and fails to take note of the fact that present appellants are not parties to the said earlier original suit as well as in the appeal. Hence, questioning the same does not arise. These appellants have come on record only on the death of their mother, who has been arrayed as defendant No.2/respondent No.2 and no right is conferred in respect of the mother in these two Survey numbers. When such being the case, questioning the same as legal heirs of the mother does not arise as there was no properties allotted in favour of the mother in these two survey numbers. 5. Having heard the counsel appearing for the respective parties, it is very clear that the plaintiff instead of claiming the share against the father in O.S.No.41/2008 in - 7 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 respect of Sy.No.134/2 to the extent of 9 guntas, claim was made to the extent of 19 guntas without any basis. Hence, the error was crept in passing the judgment and decree by the Trial Court in O.S.No.41/2008 and so also confirming the same in R.A.No.38/2012. The Trial Court in FDP and the First Appellate Court in the appeal also fails to take note of the extent of land allotted in favour of the first defendant in the original suit. That is only to the extent of 30 guntas i.e., in Sy.No.134/1 to the extent of 21 guntas and in Sy.No.134/2 to the extent of 9 guntas. When claim is made more than the extent i.e., 19 guntas without any basis, the same has to have been set it right by the Trial Court itself in FDP proceedings and the same has not been done. Even the First Appellate Court also committed an error in R.A.No.72/2018 making an observation that the earlier judgment and decree already attained its finality. But the fact is that if the same is continued, then the rights of the appellants will be affected since they have also got 30 guntas each in the partition in respect of these two Sy.Nos.134/1 and 134/2 as like that of the father of respondent No.1 herein who has also got only 30 guntas of land in the said partition and there was equal partition among the four sons of - 8 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 Dasarath Rao, that is 30 guntas each. Respondent No.1 cannot claim more than the extent of he property what was allotted to the father i.e., defendant No.1. hence, the very approach of the Trial Court and also the First Appellate Court in rejecting the claim of these appellants is erroneous and hence, answered the substantive question of law as affirmative. 6. In view of the discussions made above, I pass the following: ORDER The Second Appeal is allowed. The impugned judgment and decree passed in FDP No.8/2012 as well as in R.A.No.72/2018 are set aside clarifying that the claim of respondent No.1 as against his father is only to the extent of 30 guntas of land i.e., in Sy.No.134/1 to the extent of 21 guntas and in respect of Sy.No.134/2, to the extent of 9 guntas and not 19 guntas as claimed in the original suit in O.S.No.41/2008 and also in FDP proceedings. The matter is remitted back to the FDP Court setting aside the order of the said Court in view of - 9 - HC-KAR NC: 2026:KHC:5398 RSA No. 1626 of 2021 the observations made by this Court to the extent of 9 guntas in Sy.No.134/2 instead of 19 guntas in Sy.No.134/2. The earlier commissioner report is not sustainable in view of the observations made by this Court hence, the Trial Court is directed to draw the final decree by appointing a fresh commissioner for division of the property only to the extent of 9 guntas in Sy.No.134/2 in view of the observations made by this Court. This Court clarified that this order is to the extent of 30 guntas only which is divided among the sons of Dasarath Rao and not intervened with regard to the property which was already alienated and respective parties are in possession over the property to the extent of 2½ guntas each which was already alienated and divided among them by constructing the houses and residing in their respective houses in the area of alienated property. Sd/- (H.P.SANDESH) JUDGE SN