- 1 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 12TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO. 5767 OF 2013 (PAR) BETWEEN: 1. SRI PALAPPA S/O. HANUMAPPA @ HANUMANTHAPPA, AGE: 66 YEARS, OCC: AGRICULTURE, R/O. SIDDAPURA VILLAGE, TQ. KUDLIGI, DIST. BELLARY. SINCE DECEASED BY HIS LRS. 1A. SMT. NAGAMMA W/O. PALAPPA, AGE: 71 YEARS, OCC: HOME MAKER, R/O. SIDDAPURA VILLAGE, TQ. KUDLIGI, DIST. VIJAYANAGARA. 1B. SMT. PARWATHAMMA D/O. LATE PALAPPA W/O. ANANDAPPA, AGE: 51 YEARS, OCC: HOME MAKER, R/O. KADOKOLA VILLAGE, TQ. KUDLIGI, DIST. VIJAYANAGARA. 1C. SMT. MEENAKSHAMMA D/O. LATE PALAPPA W/O. MAHABALESWARA, AGE: 48 YEARS, OCC: HOME MAKER, R/O. SIDDAPURA VILLAGE, TQ. KUDLIGI, DIST. VIJAYANAGARA. 1D. SRI MALIYAPPA S/O. LATE PALAPPA, AGE: 49 YEARS, OCC: AGRICULTURE, R/O. SIDDAPURA VILLAGE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 TQ. KUDLIGI, DIST. VIJAYANAGARA. 1E. SMT. MANGALAMMA D/O. LATE PALAPPA W/O. SIDDAPPA, AGE: 38 YEARS, OCC: HOME MAKER, R/O. YEMBLE VILLAGE, TQ. KUDLIGI, DIST. VIJAYANAGARA. 1F. SRI L. NAGARAJA S/O. LATE PALAPPA, AGE: 43 YEARS, OCC: AGRICULTURE, R/O. SIDDAPURA VILLAGE, TQ. KUDLIGI, DIST. VIJAYANAGARA. 1G. SRI L. BASAVARAJA @ BASAPPA S/O. LATE PALAPPA, AGE: 43 YEARS, OCC: AGRICULTURE, R/O. SIDDAPURA VILLAGE, TQ. KUDLIGI, DIST. VIJAYANAGARA. 1H. SRI L. SOMASEKHAR S/O. LATE PALAPPA, AGE: 43 YEARS, ODD: AGRICULTURE, R/O. SIDDAPURA VILLAGE, TQ. KUDLIGI, DIST. VIJAYANAGARA. …APPELLANTS (BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE) AND: 1. SRI SEKHARAPPA S/O. HANUMANTHAPPA, AGE: 59 YEARS, OCC: AGRICULTURE. 2. SRI HOOTEPPA S/O. HANUMANTHAPPA, AGE: 58 YEARS, OCC: AGRICULTURE. 3. SRI DURUGAPPA S/O. HANUMANTHAPPA AGE: 56 YEARS, OCC: AGRICULTURE. 4. SRI MALIYAPPA S/O. HANUMANTHAPPA AGE: 54 YEARS, OCC: AGRICULTURE, ALL ARE R/O. SIDDAPUR VILLAGE, TQ: KUDLIGI, DIST: BELLARY. - 3 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 5. SMT. HANUMAKKA S/O. HANUMANTHAPPA, W/O. BASAPPA @ SETTEPPA, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. THIMMANAHALLI VILLAGE, TQ: KUDLIGI, DIST: BELLARY. 6. SMT. MALIYAMMA D/O. HANUMANTHAPPA W/O. MAREPPA, AGE: 62 YEARS, OCC: HOUSEWIFE, R/O. KANAMADUGU VILLAGE, TQ: KUDLIGI, DIST: BELLARY. 7. SMT. BORAMMA D/O. HANUMANTHAPPA W/O. LATE OBAPPA, AGE: 60 YEARS, OCC: HOUSEWIFE, R/O. KANAMADUGU VILLAGE, TQ: KUDLIGI, DIST: BELLARY. 8. SRI SHANKARAPPA S/O. HANUMANTHAPPA AGE: 50 YEARS, OCC: AGRICULTURIST, R/O. SIDDAPUR VILLAGE, TQ: KUDLIGI, DIST: BELLARY. …RESPONDENTS (BY SRI Y. LAKSHMIKANT REDDY AND SMT. Y. MALATHI REDDY, ADVOCATES) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 17.08.2013 IN R.A.NO.33/2013 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, KUDLIGI AND SET ASIDE THE JUDGMENT AND DECREE DATED 18.01.2010 IN O.S.NO.30/2008 PASSED BY THE LEARNED CIVIL JUDGE AND JMFC, KUDLIGI, BY ALLOWING THE ABOVE APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This regular second appeal is filed by defendant No.1 challenging the judgment and decree dated 17.08.2013 passed in R.A.No.33/2012 on the file of Senior Civil Judge and JMFC, Kudligi1, wherein I.A.No.II filed by the appellant for production of additional evidence was dismissed and the regular appeal itself was dismissed, thereby confirming the judgment and decree dated 18.01.2010 passed in O.S.No.30/2008 on the file of Civil Judge and JMFC, Kudligi2, in a suit filed for partition and separate possession. 2. For the purpose of convenience, ranking of the parties is referred to as per their status before the Trial Court. 3. The plaintiffs have filed a suit for partition and separate possession by stating the genealogy as follows: Hanumanthappa ` Palamma (Pltf-1) 1)Palappa 3) Maliyamma 5) Shekharappa 7) Durgappa 9) Shankarappa (Deft-1) (Pltf-7) (Pltf-2) (Pltf-4) (Deft-2) 2) Hanumakka 4) Boramma 6) Hotteppa 8) Maliyappa (Pltf-6) (Pltf-8) (Pltf-3) (Deft-2) 1 Hereinafter referred to as the ‘First Appellate Court’ 2 Hereinafter referred to as the ‘Trial Court’ - 5 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 4. It is the pleading of the plaintiffs that the suit properties are ancestral and joint family properties. Based on the evidence on record, the Trial Court decreed the suit holding that the plaintiffs are entitled to 1/9th share each in all the suit schedule properties. 5. Being aggrieved by the same, defendant No.1 has preferred a regular appeal before the First Appellate Court and also filed an application for production of additional evidence under Order XLI Rule 27 of the Code of Civil Procedure, 19083, contending that Item No.2 of the suit schedule property is the self acquired property of defendant No.1. However, the First Appellate Court dismissed both the application as well as the appeal. 6. Being aggrieved by the dismissal of the appeal, defendant No.1 has preferred the present regular second appeal. 7. Learned counsel appearing for defendant No.1/appellant submitted that defendant No.1 is not aggrieved by the judgment and decree in respect of Item Nos.1, 3 and 4 of the suit schedule properties, granting 1/9th share each, but is 3 Hereinafter referred to as the ‘CPC’ - 6 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 aggrieved only insofar as Item No.2 of the suit schedule property bearing Sy.No.908/A measuring 01 acre 65 cents is concerned. It is submitted that the said property was granted by the land Tribunal exclusively in the name of defendant No.1, as he alone was cultivating the land and therefore, it constitutes his self acquired property. Since defendant No.1 had not led evidence before the Trial Court, he filed an application under Order XLI Rule 27 of the CPC before the First Appellate Court seeking to produce additional evidence. 8. Learned counsel appearing for defendant No.1/appellant further submitted that when an application under Order XLI Rule 27 of the CPC is filed, the First Appellate Court ought to have either received the evidence itself or remanded the matter to the Trial Court. Instead, the application was dismissed without proper consideration. It is also contended that the finding with regard to Item No.2 property is perverse and contrary to the evidence produced by the plaintiffs themselves at Exs.P6 to P10- record of rights. Therefore, prays interference of this Court insofar as Item No.2 property is concerned. 9. On the other hand, learned counsel appearing for the respondents has justified the judgments and decrees passed by - 7 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 the Trial Court and the First Appellate Court. It is contended that Item No.2 property is also a joint family property and not the exclusive property of defendant No.1. Though the land Tribunal granted occupancy rights in the name of defendant No.1, which is not exclusive to defendant No.1, the same enures to the benefit of the joint family. Hence, there is no need to make interference with the concurrent findings recorded by the Trial Court and the First Appellate Court. Hence, prays for dismissal of the appeal. 10. Having heard the learned counsel for both sides, the following substantial questions of law arise for consideration: i) Whether, under the facts and circumstances involved in the case, the Trial Court and the First Appellate Court are justified in holding that Item No.2 of the suit schedule property bearing Sy.No.908/A to the extent of 01 acre 65 cents is joint family property and amenable for partition? ii) Whether, under the facts and circumstances involved in the case, the First Appellate Court is justified in rejecting the application filed under Order XLI Rule 27 of the CPC without receiving the additional evidence? - 8 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 11. The plaintiffs filed the suit for partition and separate possession. Learned counsel appearing for the appellant/defendant No.1 has not disputed the grant of 1/9th shares each to the plaintiffs in respect of Item Nos.1, 3 and 4 of the suit schedule properties. However, it is contended that Item No.2 property bearing Sy.No.908/A measuring 01 acre 65 cents is the self acquired property of defendant No.1. Admittedly, defendant No.1 has not led any evidence before the Trial Court to prove that Item No.2 property is his self acquired property. Upon re-appreciating of the evidence on record, both the Trial Court and the First Appellate Court are justified in holding that Item Nos.1, 3 and 4 of the suit schedule properties are joint family properties. The findings insofar as these properties are concerned do not suffer from any perversity or illegality and are accordingly confirmed. 12. Defendant No.1 filed an application under Order XLI Rule 27 of the CPC before the First Appellate Court producing two grant orders dated 15.06.1959 and 08.06.1981. The grant order dated 15.06.1959 pertains to land bearing Sy.No.908/C measuring 09 acres 50 cents, standing in the name of Hanumanthappa, the husband of plaintiff No.1 and father of - 9 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 plaintiff Nos.2 to 8 and defendants No.1 and 2. The grant order dated 08.06.1981 pertains to the land bearing Sy.No.908/A measuring to the extent of 01 acre 65 cents, standing in the name of defendant No.1. 13. The First Appellate Court ought to have received the additional evidence or by remanded the matter to the Trial Court for proper adjudication. Even if the application was to be rejected, the First Appellate Court was required to consider and record the findings on the said documents. The observation of the First Appellate Court that the name of Hanumanthappa appears in the records of rights for Item No.2 property is contrary to Exs.P6 to Ex.P10. 14. Therefore, the observations made by the First Appellate Court are perverse. As per the grant order dated 08.06.1981, Item No.2 property stands in the name of defendant No.1. However, evidence is required to be led to ascertain whether defendant No.1 himself had filed the application before the land Tribunal in respect of Item No.2 property is concerned or whether the application was filed by his father Hanumanthappa. Also, the crucial question to be decided is whether the grant of occupancy rights in respect of Item No.2 - 10 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 property enures to the benefit of the joint family or whether it was granted in favour of defendant No.1 in his individual capacity. 15. Admittedly, the First Appellate Court has not received or considered any evidence on this aspect to determine whether Item No.2 property is self acquired property of defendant No.1 or whether the grant of land enures to the benefit of the joint family. Therefore, insofar as Item No.2 property is concerned, the appeal is required to be remanded to the First Appellate Court to decide whether it is self acquired property of defendant No.1 or whether the grant order enures to the benefit of the joint family. Therefore, the judgment and decree insofar as Item No.2 of the suit schedule property is concerned are liable to be set aside, while the judgment and decree passed by the First Appellate Court in respect of the remaining suit schedule properties are confirmed. It is made clear that the remand is confined only to Item No.2 of the suit schedule property bearing R.S.No.908/A measuring 01 acre 65 cents, situated at Gundumunugu village of Kudligi taluk. 16. Accordingly, the substantial questions of law are answered in the ‘negative’, holding that the Trial Court and the - 11 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 First Appellate Court are not justified in decreeing the suit insofar as Item No.2 property is concerned, without proper consideration of the additional evidence. 17. Hence, I proceed to pass the following: ORDER a) The appeal is allowed in part; b) The judgment and decree dated 17.08.2013 passed in R.A.No.33/2012 on the file of Senior Civil Judge and JMFC, Kudligi, is confirmed in respect of Item Nos.1, 3 and 4 of the suit properties; c) The judgment and decree dated 17.08.2013 passed in R.A.No.33/2012 on the file of Senior Civil Judge and JMFC, Kudligi, is set aside insofar as Item No.2 of the suit schedule property is concerned; d) The matter is remanded to the Court of Senior Civil Judge and JMFC, Kudligi, to reconsider the application under Order XLI Rule 27 of the CPC, receive additional evidence, and decide whether Item No.2 property bearing Sy.No.908/A - 12 - HC-KAR NC: 2026:KHC-D:295 RSA No. 5767 of 2013 measuring 01 acre 65 cents, situated at Gundumunugu village of Kudligi Taluk, is the self acquired property of defendant No.1 or whether the grant enures to the benefit of joint family, in accordance with law, within a period of one year from the date of appearance of parties; e) The documents produced along with the additional evidence shall be transmitted to the First Appellate Court; f) Both parties are at liberty to produce evidence insofar as Item No.2 property is concerned before the First Appellate Court; g) All contentions relating to Item No.2 property are kept open; h) No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP /CT-AN List No.: 1 Sl No.: 30