- 1 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 20TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO. 5350 OF 2012 (INJ) BETWEEN: 1. VISHNU NILAKANT NAIK, SINCE DECEASED BY HIS LR’S. A. ULLAS VISHNU NAIK, AGE: 57 YEARS. B. RAVI VISHNU NAIK, AGE: 47 YEARS, OCCUPATION: SERVICE. C. SATISH VISHNU NAIK, AGE: 44 YEARS, OCC: SERVICE. D. SANJEEV VISHNU NAIK, AGE: 42 YEARS, OCC: SERVICE. E. VINODINI HADU POWAR, AGE: 67 YEARS, OCC: HOUSEHOLD. F. KUNDA PREMANANT BHAGAT, AGE: 62 YEARS, OCC: HOUSEHOLD. G. MANDA PRAKASH SALUNKE, AGE: 60 YEARS, OCC: HOUSEHOLD, ALL ARE R/O. KONDWA PUNE, MAHARASHTRA. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 2. MAHABALESHWAR NILKANT NAIK, AGE: 79 YEARS, OCC: RETIRED FROM SERVICE & RYOT, R/O. DESAIWADA, BHAIRE VILLAGE, TALUK: KARWAR. …APPELLANTS (BY SMT. GANGA S. K., AMICUS CURIAE FOR APPELLANTS) AND: 1. GHANSHYAM NILAKANT NIAK, SINCE DECEASED BY HIS LRS. 1A. SMT. PRAMILA PANDURANG NAIK, D/O. DECEASED GHANASHAM NAIK, AGE: 47 YEARS, AT/POST. BHARANAWADA, GOPASHITTA, KARWAR. 1B. SMT. KALPANA UDAY RANE, D/O. DECEASED GHANASHAM NAIK, AGE: 40 YEARS, R/O. PASKEWADA KINNER, KARWAR. 2. SUDHA W/O. GHANSHYAM NAIK, AGE: 76 YEARS, OCC: HOUSEHOLD WORK. 3. NILKANT GHANSHYAM NAIK, AGE: 41 YEARS, OCC: RYOT. 4. SHAILESH GHANSHYAM NAIK, AGE: 36 YEARS, OCC: RYOT, ALL ARE RESIDENT AT: DESAIWADA, BHAIRE VILLAGE, TAL: KARWAR. - 3 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 5. SMT. MEERA W/O. MADHUKAR POWAR, AGE: 71 YEARS, OCC: HOUSEHOLD WORK, R/O. WANGAD, MAJALI, KARWAR. 6. JAIVANTA W/O. BHIKAJI NAIK, AGE: 68 YEARS, OCC: HOUSEHOLD WORK, R/O. RAJEKHAN BAUG, SADASHIVGAD, KARWAR. 7. SHIVANAND GANESH RANE, AGE: 66 YEARS, OCC: RYOT, R/O. BORIBAG, KINNER, KARWAR. 8. SURENDRA S/O. GANESH RANE, AGE: 60 YEARS, OCC: RYOT, R/O. BORIBAG KINNER, KARWAR. 9. VITHALRAY GANESH RANE, AGE: 58 YEARS, OCC: RYOT, R/O. BORIBAG, KINNER, KARWAR. 10. CHANDRAKANT GANESH RANE, AGE: 54 YEARS, OCC: RYOT, R/O. BORIBAG, KINNER, KARWAR. 11. ANIL GANESH RANE, AGE: 51 YEARS, OCC: RYOT, R/O. BORIBAG, KINNER, KARWAR. RESPONDENT/DEFENDANTS NOS.5 TO 11 ARE LR’S OF LATE KALYANI GANESH RANE @ KALYANI D/O. NILAKANT NAIK. 12. SMT. NARMADE W/O. ANANT DESAI, - 4 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 AGE: 76 YEARS, OCC: HOUSEHOLD WORK, R/O. BHALEWADA, SADASHIVGAD, KARWAR. 13. LALITHA W/O. RAMACHANDRA RANE, AGE: 71 YEARS, OCC: HOUSEHOLD, R/O. ANASI, JOIDA. 14. SMT. SINDHU W/O. RATNAKAR DESAI, AGE: 68 YEARS, OCC: HOUSEHOLD, R/O. ROOM NO.B-258, TOWNSHIP, DANDELI NEAR URDU SCHOOL, DANDELI, NOW RESIDING C/O. KALYANDAS R. DESAI, GKT HITCH LESSES PVT LTD., 4-227, IIND AVENUE (NEAR AYYAPPA TEMPLE), KIMS PARLE TOWER, ANNANAGAR,CHENNAI-40. …RESPONDENTS (BY SRI A. S. PATIL, ADV. FOR R1 & R4; NOTICE TO R1(A & B), R5 TO R14 ARE SERVED; APPEAL AGAINST R2 & R3-ABATED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED BY THE DISTRICT JUDGE, UTTARA KANNADA, AT: KARWAR IN R.A.NO.47/2010 BY ALLOWING THE SAID APPEAL AND THEREBY REVERSE JUDGMENT AND DECREE DATED 09.02.2010 PASSED BY THE LEARNED ADDL. CIVIL JUDGE (SR.DN.) KARWAR IN O.S.NO.77/2006 IN RESPECT OF THE SUIT PROPERTIES MENTIONED AT SL.NO.3 & 7, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Taking note of the fact that the advocate for the appellants has been elevated as a Judge of the High Court of Karnataka, and though court notices issued to the appellants were served, they remained unrepresented, therefore, Smt.Ganga S.K., a learned counsel is appointed as Amicus Curiae to assist the Court and also to represent the appellant. Also, appellant Nos.1(e), 1(f), and 1(g) are aged women , therefore, they are entitled to free legal aid under Section 13 of the Legal Services Authorities Act, 1987. 2. Though this matter is listed for admission, with the consent of the Amicus Curiae for the appellants and the learned counsel for the respondents, it is taken up for final disposal. 3. This regular second appeal is filed by the plaintiffs challenging the judgment and decree dated 17.12.2011 passed by the District Judge, Uttar Kannada, - 6 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 Karwar in R.A.No.47/2010 which confirms the judgment and decree dated 09.02.2010 passed by the learned Additional Civil Judge (Sr.Dn.) Karwar in O.S.No.77/2006, thereby not granting share to the plaintiffs in respect of suit schedule properties at Sl.Nos.3 and 7. 4. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 5. The plaintiffs have filed suit for partition and separation possession of the suit schedule properties by claiming 1/3rd share and stating that all the suit schedule properties are joint family properties. 6. The Trial Court decreed the suit in part and granted a decree insofar as properties at Sl. Nos.1 and 2, 4 to 6, and 8 to 13 in respect of plaint schedule “A” properties, and also in respect of the two house properties admittedly situated on land bearing Sy.No.5/4B2. The suit - 7 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 was dismissed in respect of tenancy lands mentioned at Sl. Nos.3 and 7. 7. The plaintiffs being aggrieved by not granting share in respect of the suit schedule properties at Sl.Nos.3 and 7, preferred an appeal before the First Appellate Court. The First Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the trial Court. 8. Heard the arguments of Amicus Curiae for the appellants and the learned counsel for the respondents, and perused the records. 9. The learned Amicus Curiae for the appellants submitted that though suit schedule properties at Sl.Nos.3 and 7 were granted in the name of defendant No.1, but are the joint family properties, and prayed for interference by this Court and for a decree of partition in respect of the properties at Sl.Nos.3 and 7, which are granted lands. - 8 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 10. On the other hand, learned counsel for respondents/defendants by justifying the judgment and decree passed by both the Trial Court and the First Appellate Court, submitted that the plaintiffs have not placed any evidence to prove that the suit schedule item Nos.3 and 7 properties in which occupancy rights were granted exclusively in the name of defendant No.1. Therefore, justified the judgment and decree passed by both the Trial Court and the First Appellate Court. 11. The First Appellate Court has assigned reasons that the plaintiffs have not placed evidence to prove that defendant No.1 filed Form No.7 for and on behalf of the joint family. Therefore, dismissal of suit in respect of these properties is just and proper. 12. Further, the Trial Court and the First Appellate Court have given finding that admittedly the property belongs to the 1st defendant who was cultivating the land as Chalgenidar. It is observed by both the Trial Court and the First Appellate Court and gave finding on the basis of - 9 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 evidence on record that Nilkantha has also cultivated the land and after the death of Nilkantha, the 1st defendant who cultivated the land as Chalgenidar is not forthcoming on record as there is no evidence placed by the plaintiffs to hold that these two properties are joint family properties. When the 1st defendant has contended that he was cultivating the land and the occupancy rights were granted in his favour exclusively, then for rebuttal of the same the plaintiffs ought to have produced the evidence. But the plaintiffs have not produced any evidence. Therefore, the finding of fact made by both the Trial Court and the First Appellate Court is based on records. Therefore, there is no need to make any interference in the order passed by both the Trial Court and the First Appellate Court. Hence, the appeal is liable to be dismissed. Accordingly it is dismissed. 13. In view of disposal of the appeal, pending interlocutory applications, if any, stand disposed of as they do not survive for consideration. - 10 - HC-KAR NC: 2026:KHC-D:622 RSA No. 5350 of 2012 14. Smt.Ganga S.K., advocate, an Amicus Curiae has well represented the case and assisted the Court effectively. Therefore, she needs appreciation and also the Member Secretary, High Court Legal Services Committee, Dharwad Bench, Dharwad, is directed to pay professional fees of Rs.5,000/- to the learned Amicus Curiae. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE ASN-para No.1 to 9 MRK-para No.10 to end. CT-AN List No.: 1 Sl No.: 47