Karnataka High Court
Smt. Jayamma vs Sri H. Rameshappa on 9 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:24985
RSA No. 855 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.855 OF 2021 (PAR)
BETWEEN:
1. SMT. JAYAMMA
AGED ABOUT 57 YEARS,
W/O NAGESHAPPA,
D/O LATE SRI. KARIYAPPA,
R/AT HALIVANA VILLAGE,
HARIHARA TALUK,
DAVANAGERE DISTRICT-577530.
2. SMT. CHANDRAMMA
AGED ABOUT 55 YEARS,
W/O KARIBASAPPA,
R/AT HALIVANA VILLAGE,
HARIHARA TALUK,
Digitally signed DAVANAGERE DISTRICT-577530.
by DEVIKA M
Location: HIGH 3. SMT. HALAMMA
COURT OF
KARNATAKA AGED ABOUT 59 YEARS,
W/O LATE DILLYAPPA,
R/AT KUMBALUR VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTRICT-577219.
4. SRI GOVINDA RAJU
AGED ABOUT 27 YEARS,
S/O LATE DILLYAPPA,
R/AT KUMBALUR VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTRICT 577219.
-2-
NC: 2025:KHC:24985
RSA No. 855 of 2021
HC-KAR
5. SRI. K.S. BEERAPPA
AGED ABOUT 51 YEARS,
S/O K.S.KARIYAPPA,
R/AT KUMBALUR VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTRICT-577219.
...APPELLANTS
(BY SRI. NARASIMHA PRASAD S.D., ADVOCATE)
AND:
1. SRI. H. RAMESHAPPA
AGED ABOUT 49 YEARS,
S/O. LATE HANUMANTHAPPA,
R/AT KUMBALUR VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTRICT-577219.
2. SRI. H. HALASIDDAPPA
AGED ABOUT 47 YEARS,
S/O LATE HANUMANTHAPPA,
R/AT KUMBALUR VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTRICT-577219.
3. SRI. H. NAGARAJA
AGED ABOUT 41 YEARS,
S/O. LATE HANUMANTHAPPA,
R/AT KUMBALUR VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTRICT-577219.
4. SMT. HANUMAKKA
AGED ABOUT 77 YEARS,
W/O LATE HANUMANTHAPPA,
R/AT KUMBALUR VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTRICT-577219.
-3-
NC: 2025:KHC:24985
RSA No. 855 of 2021
HC-KAR
5. SMT. DEVIRAMMA
AGED ABOUT 52 YEARS,
W/O MANJAPPA,
D/O. LATE HANUMANTHAPPA,
R/AT SINGATAGERI VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTRICT 577217.
6. SMT. GEETHAMMA
AGED ABOUT 45 YEARS,
W/O. JAYAPPA,
D/O. LATE HANUMANTHAPPA,
R/AT MATHI VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577525.
7. SMT. LATHAMMA
AGED ABOUT 43 YEARS,
W/O HANUMANTHAPPA,
D/O. LATE HANUMNTHAPPA,
R/AT KAMALAPURA VILLAGE,
HARIHARA TALUK,
DAVANAGERE DISTRICT-577516.
...RESPONDENTS
(BY SRI. D.P.MAHESH, ADVOCATE FOR R1 TO R4, R6 AND R7;
R5 - IS DEAD)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.03.2021
PASSED IN R.A.NO.89/2013 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 08.10.2013 PASSED IN O.S.NO.109/2006 ON THE FILE
OF THE SENIOR CIVIL JUDGE, HARIHARA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-4-
NC: 2025:KHC:24985
RSA No. 855 of 2021
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellants and the learned counsel
for the respondents.
2. This second appeal is filed against the
concurrent finding. The factual matrix of the case of the
plaintiff before the Trial Court that suit schedule properties
belongs to the joint family and they are in joint possession
and enjoyment of the suit schedule properties along with
the defendants. The defendants appeared and filed a
written statement and particularly defendant No.1 took the
contention that there was an oral partition on 12.04.1968
and defendant No.1 also took the contention that present
suit is not maintainable in view of the decision in
O.S.No.80/1987 and also contend that suit is hit by Order
2 Rule 2 of CPC and further contention was taken by the
defendant No.1 that item Nos.2, 6, 7 and 8 are his
exclusive properties and defendant No.3 also took the
NC: 2025:KHC:24985
HC-KAR
specific defense that item No.7 is his self-acquired
property and defendant No.4 took the specific defense that
item No.2 is his self-acquired property. The Trial Court
allowed the parties to lead evidence and plaintiff No.2 has
been examined as P.W.1 and also examined other
witnesses as P.W.2 to P.W.4 and got marked documents
Ex.P.1 to Ex.P.8, but P.W.2 not subjected for cross
examination and therefore evidence of P.W.2 was
discarded. The P.W.3 and P.W.4 subjected themselves for
cross examination by the defendant Nos.3 and 4 after the
addition of defendant Nos.3 and 4. On the other hand, the
defendant No.1 and defendant No.4 have been examined
as D.W.1 and D.W.2 respectively and also examined two
witnesses as D.W.3 and D.W.4 and got marked documents
Ex.D.1 to Ex.D.21, but D.W.1 subjected himself for cross
examination on 21.07.2012 and subsequently he did not
appear and hence his evidence was not considered.
3. The Trial Court having considered both oral and
documentary evidence comes to the conclusion that
NC: 2025:KHC:24985
HC-KAR
properties are the ancestral properties by answering issue
No.1 as affirmative in coming to the conclusion that the
suit schedule properties are the joint family properties and
though took the defence that item Nos.2, 6, 7 and 8 are
the self acquired properties of defendants as contended by
defendant No.1, defendant No.3 and defendant No.4 and
the same was answered as negative and granted the relief
of partition in respect of the suit schedule properties
coming to the conclusion that entitled for 1/3rd share in all
the suit schedule properties and defendant Nos.1 and 2
are also having 1/3rd share each in the suit schedule
properties.
4. Being aggrieved by the finding of the Trial
Court, an appeal is filed in R.A.No.89/2013 before the First
Appellate Court. The First Appellate Court having
considered the grounds urged in the appeal as well as the
respective submissions of both the counsels, formulated
the point whether the Trial Court erred in answering the
point No.1 with regard to Order 2 Rule 2 of CPC is not
NC: 2025:KHC:24985
HC-KAR
applicable and also whether the Trial Court committed an
error in coming to the conclusion that there was no
evidence of oral partition between Hanumanthappa and
defendant No.1 and whether the Trial Court committed an
error in answering the other issues in respect of the
specific contention that item No.2, 6 and 7 are the
exclusive properties of defendant Nos.1, 3 and 4 and
whether it requires interference of this Court.
5. The First Appellate Court also having
re-assessed both oral and documentary evidence placed
on record, answered all the points for consideration as
negative and confirmed the judgment of Trial Court and
hence the present second appeal is filed before this Court.
The main contention of the counsel appearing for the
appellant before this Court is that both the Courts have
failed to take note of the fact that item Nos.2, 6 and 7 of
the suit schedule properties are also the joint family
properties instead of sale deeds are produced before the
Trial Court that the same having been purchased by
NC: 2025:KHC:24985
HC-KAR
defendant Nos.1, 2 and 3. It is also the contention of the
appellants' counsel that the conclusion of both the Courts
that the respondents are in joint possession and
enjoyment of the suit schedule property is erroneous and
also not justified in ordering for partition in respect of item
Nos.1 to 8 schedule properties although the defendant
Nos.1, 3 to 5 have produced Ex.D.1 and Ex.D2 which
reflect that properties are stands in the name of respective
parties and hence, this Court has to admit and frame
substantive question of law.
6. The counsel appearing to the respondents
would contend that in order to prove the factum of earlier
partition, no document is placed before the Court and only
defence was taken and mere taking of defence is not
enough. The counsel also vehemently contend that when
the family properties are in existence and the same has
not been disputed and if any other properties are
purchased by them and the same is purchased out of joint
nucleus and not placed any record before the Court that
NC: 2025:KHC:24985
HC-KAR
they are having other income other than the joint nucleus
of the property and hence their contention cannot be
accepted that those properties are self-acquired properties
and both the Courts have taken note of the said fact into
consideration and answered the relevant issues as
negative that the defendants have not proved the same
that those properties are the self acquired properties.
7. Having heard the appellants' counsel and also
the counsel appearing for the respondents, it is not in
dispute that they are the legal heirs of Siddappa and it is
also not in dispute that plaintiffs are the children of
Hanumanthappa who is son of Siddappa. No doubt the
Hanumanthappa earlier had filed the suit and also no
dispute that he passed away during the pendency of the
suit and also the plaintiffs were brought on record as legal
heirs in the earlier suit. But, the same was also not
adjudicated on merits. The very contention of the counsel
appearing to the appellant that Order 2 Rule 2 of CPC was
not invoked by the Trial Court and First Appellate Court
- 10 -
NC: 2025:KHC:24985
HC-KAR
and the very submission cannot be accepted and earlier
suit was filed by the father, but the same was not
adjudicated on merits and the same was dismissed for non
prosecution.
8. The other contention of the appellants' counsel
that specifically pleaded by defendant No.1, defendant
No.3 and defendant No.4 that item No.2, 6 and 7 are the
self acquired properties of the respective defendants. It is
emerged during the course of evidence that though D.W.1
took the specific defence regarding oral partition and he
was subjected partly for cross examination and thereafter
he did not subject for cross examination and hence his
evidence has not been accepted and defendant No.1 only
pleaded regarding earlier oral partition and the same has
not been substantiated. In order to prove the factum of
earlier oral partition is concerned, parties have not acted
upon and nothing is placed on record that parties have
acted upon. Hence, the very contention that earlier there
was a partition also cannot be accepted and the same was
- 11 -
NC: 2025:KHC:24985
HC-KAR
also taken note of by both the Trial Court and Appellate
Court.
9. It is also important to note that
Hanumanthappa earlier had filed the suit and this Court
already observed that the same has not reached its
finality. But, the fact that family was having other family
properties that is item Nos.1, 3 to 5 and 8 including the
house property and also the agricultural land property
bearing Sy.No.2/1, Sy.No.25/1 and also Sy.No.51/2B and
the same is not disputed that those properties are belongs
to the family, but only contention was taken that they
have acquired the item Nos.2, 6 and 7 properties and they
are the independent properties. The fact that there was no
any partition prior to purchasing of this property and
though they have produced the sale deed and having
independent income to purchase those properties also not
established by defendant No.1 since he was not subjected
to cross examination in full and though other defendants
examined and nothing is placed on record that they were
- 12 -
NC: 2025:KHC:24985
HC-KAR
having independent income to purchase those property
and hence both the Trial Court and Appellate Court not
accepted their contention. When such being the case, in
the absence of documentary evidence that they were
having independent source of income to purchase the
property, question of coming to the conclusion that those
properties are their self acquired properties also cannot be
accepted. Both Trial Court as well as the Appellate Court
re-assessed the material available on record and the fact
that all the joint family properties are standing in the
name of defendant No.1 and defendants have not
produced any separate income to purchase the item No.2
in the name of defendant No.4 also taken note of by the
First Appellate Court and discussed in detail the evidence
of witnesses including D.W.1, D.W.2, D.W.3 and except
stating in the affidavit that they have purchased the
property out of their independent income, nothing is
placed on record and I do not find any error committed by
the Trial Court and Appellate Court in granting the relief
- 13 -
NC: 2025:KHC:24985
HC-KAR
and confirming the same. Hence, I do not find any ground
to admit and frame any substantive question of law.
10. In view of the discussions made above, I pass
the following:
ORDER
Second Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
