Karnataka High Court
Ashwini D/O Shivaji Jadhav vs Subani S/O Bhavani Jadhav on 25 October, 2025
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NC: 2025:KHC-D:14243
RSA No. 100767 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 25TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100767 OF 2019 (PAR)
BETWEEN:
1. ASHWINI D/O. SHIVAJI JADHAV,
NOW W/O. ANIL PADATARE,
AGED ABOUT 24 YEARS, OCC. HOUSEHOLD WORK,
2. SMT. NEELABAI W/O. SHIVAJI JADHAV,
AGED ABOUT 49 YEARS, OCC. HOUSEHOLD WORK,
BOTH ARE R/O. KAJIBILAGI,
JAMKHANDI TALUK, BAGALKOTE DISTRICT.
...APPELLANTS
(BY SRI. ANIL KALE, ADVOCATE)
AND:
SUBANI S/O. BHAVANI JADHAV,
SINCE DECEASED BY HIS LRS.,
1.
YASHAVANT SHIVAJI S/O. SUBANI JADHAV,
NARAYANKAR AGED ABOUT 54 YEARS, OCC. AGRICULTURE,
Digitally signed by
YASHAVANT
2. SAMBAJI S/O. MARUTI NALAWADE,
NARAYANKAR AGED ABOUT 54 YEARS, OCC. AGRICULTURE,
Date: 2025.10.29
10:57:48 +0530
BOTH ARE R/O. KAJIBILAGI,
JAMKHANDI TALUK, BAGALKOTE DISTRICT.
...RESPONDENTS
(BY SRI. SHIVAKUMAR APARAJ, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR C/R2;
R1-DISPENSED WITH)
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 19.09.2019 PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE, BAGALKOTE, TO SIT AT JAMKHANDI, IN
R.A.NO.81/2016 DISMISSING THE JUDGMENT AND DECREE DATED
27.10.2016 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND JMFC,
JAMKHANDI IN O.S.NO.228/2007.
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NC: 2025:KHC-D:14243
RSA No. 100767 of 2019
HC-KAR
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
Heard the learned counsel for the appellants/plaintiffs No.1 and 2.
2. The factual matrix of the case is that, the plaintiff No. 1 is the daughter and plaintiff No. 2 is the wife of one Shivaji Jadhav, who is the defendant No. 2. The defendant No. 1 is father of the defendant No.2. The plaintiffs contended that they being wife and daughter of the defendant No.2 are entitled for a partition in the suit schedule properties, which are owned by the defendant No.1 and the defendant No.2 as members of the joint family. The properties included Survey No.274/3 measuring 3 acres 30 guntas and Survey No. 147/1 measuring 22 acres 32 guntas and also a house property bearing VPC No.181/A situated at Kajibilagi village in Jamkhandi Taluk. They further contented that the defendant No.3 had purchased R.S.No. 274/3 measuring 3 acres 30 guntas from the defendant No.1 without knowledge to the plaintiffs and the defendant No.2 for a consideration of -3- NC: 2025:KHC-D:14243 RSA No. 100767 of 2019 HC-KAR ₹1,50,000/- under a sale deed dated 30.07.2007. They also contended that the said transaction is not binding on them. It was alleged that the plaintiffs demanded their share in the suit schedule properties and when it was denied, they were constrained to file the suit. They also contended that the defendant No.2 was insane and therefore, they have no knowledge of any partition between the defendant No.1 and defendant No.2.
3. On appearance, the defendant No.1 contended that though the defendant No.2 is his son, he denied the relationship of the plaintiffs and the defendant No.2. In other words, he denied that the defendant No.2 was married to the plaintiff No.2. He justified the selling of the Survey No. 274/3 to the defendant No.3 contending that since there were none to look after him, he was constrained to sell the same to the defendant No.3 for his livelihood at his age of 75 years.
4. The defendant No.3-the purchaser contended in his written statement that he has purchased the suit schedule property under the bonafide belief that the defendant No.1 is the owner in title of the suit schedule property and therefore, the -4- NC: 2025:KHC-D:14243 RSA No. 100767 of 2019 HC-KAR claim of the plaintiffs is untenable. He also challenged the locus standi of the plaintiffs to claim any share in the suit schedule properties. On basis of the above claim, the following issues were framed by the Trial Court:
«ªÁzÁA±ÀUÀ¼ÀÄ "1. ªÁ¢AiÀÄgÀÄ vÁªÀÅ 2£Éà ¥ÀæwªÁ¢AiÀÄ ºÉAqÀw ªÀÄvÀÄÛ ªÀÄUÀ¼ÀÄ JAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉ?
2. ªÁ¢AiÀÄgÀÄ zÁªÁ D¹ÛAiÀÄ°è ¥Á®£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÉ?
ºÁVzÀÝgÉ JµÀÄÖ?
3. zÁªÁ D¹ÛUÀ¼À°è FUÁUÀ¯Éà ¥Á®Ä «¨sÁUÀ DVzÉ JAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉ?
4. ¥ÀæwªÁ¢ £ÀA§gÀ 3 vÁ£ÀÄ AiÉÆÃUÀå ¨É¯ÉUÉ ¤µÀÌ¥Àl RjâzÁgÀ£ÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀ£É?
5. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?"
5. The Trial Court answered the Issue Nos.1, 3 and 4 in the affirmative and Issue No.2 partly in the affirmative and proceeded to decree the suit. While decreeing the suit, the following order came to be passed by the Trial Court.
ORDER The suit of the plaintiffs is hereby partly decreed.-5-
NC: 2025:KHC-D:14243 RSA No. 100767 of 2019 HC-KAR The plaintiffs are entitled their legitimate share in schedule 'A' property bearing R.S.No.147/1 measuring 22 acres 32 guntas of Kajibilagi village and also schedule 'B' house property bearing VPC No.181/A of Kajibilagi village.
Draw the preliminary decree accordingly.
6. At this juncture itself, it would be proper to notice that the operative portion of the judgment of the Trial Court does not answer the Issue No.2 fully. It did not determine the share of the plaintiffs in the suit schedule properties, but left it by saying that legitimate share of the plaintiffs to be given. Being agreed by the exclusion of Survey No. 274/3 from the decree, the plaintiffs approached the First Appellate Court in R.A.No.81/2016. Strangely, the First Appellate Court once again went into the question of relationship between the plaintiffs and the defendant No.2, which was not appealed against and held that the plaintiffs have not proved the relationship with the defendant No.2. After holding that relationship is not proved, the appeal was dismissed and also the suit was dismissed. When the appeal is dismissed, the question of dismissal of the suit in its entirety does not arise. It is relevant to note that the defendant No.1 or defendant No.3 had not filed any appeal against the -6- NC: 2025:KHC-D:14243 RSA No. 100767 of 2019 HC-KAR decree passed by the Trial Court. Being aggrieved by the same, the plaintiffs have approached this court in second appeal.
7. After hearing the learned counsel appearing for the appellants, the following substantial question of law was framed by this court.
"Whether the First Appellate Court is justified in going beyond a scope of the appeal in dismissing the suit filed by the appellants, which was partly decreed by the Trial Court?"
8. The cardinal principle of the appeal appears to have not been followed by the First Appellate Court. It is pertinent to note that in the grounds of appeal that were taken up in the appeal memo of the First Appellate Court, nowhere the appellants/plaintiffs had questioned anything about the finding of the Trial Court regarding relationship between plaintiffs and defendant No.2. The entire contention of the appellants herein was that the decree of the Trial Court has to be modified by including Survey No.274/3 in the decree and that the share of the plaintiffs in all suit schedule properties has to be determined and they contended that such share is 1/3rd. The perusal of the -7- NC: 2025:KHC-D:14243 RSA No. 100767 of 2019 HC-KAR judgment of the First Appellate Court would show that even though the question of relationship of the plaintiffs with the defendant No.1 and 2 was not open or was challenged by the defendant No.1 or defendant No.3, the First Appellate Court was not justified in entering into such question, which was not at all pressed by any of the parties. Obviously, the defendant No.1 and the defendant no. 3 did not challenge the decree, which had granted the share to the plaintiffs. Therefore, in the absence of any appeal by the defendant No.1 and defendant No.3, challenging the decree passed by the Trial Court, a question which was not at all pressed by either of the parties was considered by the First Appellate Court and it went into the proof of the relationship and held that such relationship is not proved. Therefore, it is evident that the First Appellate Court went beyond the scope of the appeal, which was before it. Under these circumstances, the First Appellate Court has definitely erred in going beyond the scope of the appeal. A reading of the judgment of the First Appellate Court would not show that any argument was advanced by the defendant No.1 and defendant No.3 regarding the relationship between the parties. There being no such argument canvassed on behalf of the defendant No.1 and 3, -8- NC: 2025:KHC-D:14243 RSA No. 100767 of 2019 HC-KAR the First Appellate Court suo-motu goes into such question, which was not before it and renders the impugned judgment. Therefore, prima facie, the First Appellate Court has erred in dismissing the suit in its entirety. While dismissing the appeal, it failed to perceive that the appeal was only in respect of non- inclusion of Survey No.274/3 in the decree. Hence, the impugned judgment of the First Appellate Court is not sustainable in law.
9. It is pertinent to note that the Trial Court though had to give a finding on the extent of the share of the plaintiffs, it leaves it open saying that a legitimate share of the plaintiffs had to be given to them. Such determination of the share is not found in the operative portion of the order. The Issue No. 2 to 4 were considered together and a reading of the impugned judgment does not show that the share of the plaintiffs were determined in any way. Though the plaintiffs had claimed 1/3rd share, it was not determined by the Trial Court.
10. The First Appellate Court also in its enthusiasm to consider the question of relationship doesn't determine the share or it does not deal with the said question. Therefore, firstly, the First Appellate Court erred in going beyond the scope of the -9- NC: 2025:KHC-D:14243 RSA No. 100767 of 2019 HC-KAR appeal and secondly, it failed to consider the error committed by the Trial Court in not determining the share of the plaintiffs. Under these circumstances, the impugned judgment deserves to be set aside and the matter requires to be remanded to the First Appellate Court, which is empowered to consider the question of fact also and to take any additional evidence if necessary.
11. In other words, the First Appellate Court has to decide (i) whether the Trial Court is justified in excluding Survey No.274/3 from the decree on the ground that the defendant No.3 is the bona fide purchaser of the property? and (ii) whether the Trial Court is right in not determining the share of the plaintiffs in the suit schedule property despite there being an issue on it?
12. With these observations the appeal succeeds and hence the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment of the First Appellate Court in R.A.No.81/2016 is hereby set aside.
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NC: 2025:KHC-D:14243
RSA No. 100767 of 2019
HC-KAR
(iii) The matter is remanded to the First Appellate
Court for fresh hearing after giving
opportunities to both the sides and it is impressed upon the First Appellate Court to decide the questions framed in the body of this judgment.
(iv) Both the parties are directed to appear before the First Appellate Court on 01.12.2025 without waiting for any notice from the First Appellate Court.
SD/-
(C M JOSHI) JUDGE YAN CT:PA List No.: 1 Sl No.: 22