Karnataka High Court
Manjunath Govinda Nayak vs Nagesh Govinda Nayak on 25 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:48874
RSA No. 632 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.632 OF 2024 (DEC/PAR)
BETWEEN:
1. MANJUNATH GOVINDA NAYAK
AGED ABOUT 70 YEARS
S/O. LATE GOVINDA NAYAK
RESIDENT OF 167,
1ST 'B' CROSS, II PHASE,
4TH BLOCK, BSK III STAGE
BENGALURU-560 035.
...APPELLANT
(BY SMT. PUSHPALATHA G., ADVOCATE FOR
SRI. VIVEK HOLLA, HOLLA AND HOLLA, ADVOCATE)
AND:
Digitally signed
by DEVIKA M 1. NAGESH GOVINDA NAYAK
Location: HIGH AGED ABOUT 71 YEARS
COURT OF S/O. LATE GOVINDA NAYAK
KARNATAKA TEACHER
BEHIND MAHAKALI TEMPLE
BANKESHWARA
YADTHARE VILLAGE
BYNDOOR TOWN AND POST
KUNDAPURA TALUK.
2. SMT. SHARADA
W/O DANAYYANA GOVINDA SHEREGARA
AGE: MAJOR
RESIDING AT PADUVARI VILLAGE AND POST
KUNDAPURA TALUK.
-2-
NC: 2025:KHC:48874
RSA No. 632 of 2024
HC-KAR
3. SMT. SUSHEELA
AGED ABOUT 71 YEARS
W/O. K.H. SHANKAR
RETIRED EXCISE GUARD
RESIDING AT
PADUVARI VILLAGE AND POST
KUNDAPURA TALUK.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 19.12.2023
PASSED IN R.A.NO.37/2018 ON THE FILE OF SENIOR CIVIL
JUDGE, KUNDAPURA., DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
01.10.2018 PASSED IN O.S.NO.5/2011 ON THE FILE OF II
ADDITIONAL CIVIL JUDGE AND JMFC, KUNDAPURA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant.
2. This second appeal is filed against the
concurrent finding. The factual matrix of case of
plaintiff/appellant before the Trial Court that suit
annexure-I properties originally belongs to the joint family
of the plaintiff and defendants on lease hold right. The
father of the plaintiff and defendants by name late
NC: 2025:KHC:48874
HC-KAR
Govinda Anantha Nayak was the Manager of the family
and on that capacity, he has applied for grant of
occupancy right of the annexure-I properties and the same
was granted in his name. The plaintiff and defendant No.1
only divided the suit properties and later recorded the said
oral partition into written memorandum of partition on
24.05.1984. Since then, the plaintiff and 1st defendant are
in possession and enjoyment of their properties. For
effective and better title and right, the plaintiff realized
that a regular registered partition deed is required to be
entered in between him and the 1st defendant. The plaintiff
requested the 1st defendant, but the 1st defendant
protracting the actual execution of the partition deed.
Hence, the suit is filed. In pursuance of the suit summons
issued by the Court, the defendant No.1 has appeared and
filed a written statement. In the written statement he
contended that suit properties were inherited by Govinda
Nayak and the said Govinda Nayak died intestate leaving
behind his sons and daughters. Hence, his daughters are
NC: 2025:KHC:48874
HC-KAR
the necessary parties to the suit and it is absolutely false
that there was any oral partition in between him and the
plaintiff. Hence, the 1st defendant prayed to dismiss the
suit. During the pendency of the suit, an application is filed
under Order 1 Rule 10 of CPC to implead the defendant
Nos.2 and 3 to the suit and they have been impleaded as
parties to the proceedings and they also disputed the very
claim made in the plaint and claims that it should be
divided into 4 shares.
3. The Trial Court having considered the
pleadings, framed the issues and allowed the parties to
lead evidence. The plaintiff only relies upon the document
Ex.P.5 and the same is disputed by defendant No.1 and he
categorically contend that there was no such partition.
Though, it is contended that earlier there was an oral
partition and the same is reduced into writing as per
Ex.P.5 and the same is also not a registered document.
The plaintiff also not disputes the fact that the property
was allotted in favour of his father and also not disputes
NC: 2025:KHC:48874
HC-KAR
the relationship between the plaintiff and defendant Nos.1
to 3 and they are the children of their father. Even the
Trial Court also considering the material on record in
paragraph No.14 extracted the evidence of P.W.1 and
hence, comes to the conclusion that on the basis of
averments of the pleadings, it is clear that suit annexure-I
properties are ancestral and joint family properties of the
parties and there was no any division and hence, not
accepted the contention of the plaintiff and the document
Ex.P.5 which has been relied upon by the plaintiff is also
not a registered document and hence, granted the relief of
1/4th share.
4. Being aggrieved by the said judgment and
decree, an appeal is filed before the Appellate Court and
the First Appellate Court having re-assessed the material
available on record and also the grounds which have been
urged in the appeal memo, formulated the point whether
the Trial Court has committed an error in decreeing the
suit and whether it requires any interference. The First
NC: 2025:KHC:48874
HC-KAR
Appellate Court also taking into note of particularly the
document Ex.P.5 and the same is an unregistered
document and makes it clear that on the date of
agreement at Ex.P.5, defendant No.1 and plaintiff were in
joint possession and having undivided interest over the
properties acquired by his father. Nothing to disclose in
the recitals of the said Ex.P.5 that already oral partition
was took place on any particular date and in terms of the
said oral partition, the parties in the family have entered
into memorandum of partition in terms of the oral
partition. Therefore, in the absence of said recitals and
essential ingredients in the pleadings, it cannot be said
that Ex.P.5 is the memorandum of partition and also taken
note of admissibility of Ex.P.5 and also taken note of that
under Ex.P.5, the sisters i.e., defendant Nos.2 and 3 were
left out and no share was given and the same is discussed
in paragraph No.15 and hence, confirmed the judgment of
the Trial Court.
NC: 2025:KHC:48874
HC-KAR
5. Being aggrieved by the concurrent finding, the
present second appeal is filed. The main contention of the
counsel appearing for the appellant in this case is that
both the Courts have misread the evidence and same led
miscarriage of justice. The counsel would vehemently
contend that lower Courts misconstrued and
misinterpreted the memorandum of partition at Ex.P.5 and
findings of lower Court are appreciated by non
consideration of relevant material particularly document of
Ex.P.5 and there was a oral partition between the
appellant/plaintiff and 1st respondent and the same was
reduced into writing and the very approach of both the
Courts is erroneous.
6. Having heard the appellant's counsel and also
on perusal of the pleadings and reasoning of the Trial
Court and Appellate Court, no dispute with regard to the
nature of the property is concerned and only counsel for
appellant/plaintiff would vehemently contend that there
was a partition between the plaintiff and 1st defendant,
NC: 2025:KHC:48874
HC-KAR
but, the defendant Nos.1 and 2 are not the parties to the
said document and no share was given to them. When
such being the case and the document is also an
unregistered document and the same is inadmissible.
Hence, Trial Court and First Appellate Court taken note of
both the nature of the document as well as oral and
documentary evidence available on record and Appellate
Court also having re-assessed the material, particularly
considering the nature of document of Ex.P.5 and also the
claim made by the appellant/plaintiff is also based on the
Ex.P.5 and when the said document is not admissible
document and the same is not registered, I do not find
any ground to admit and frame substantive question of
law. The Trial Court and First Appellate Court taken note of
both factual aspects and also the question of law
considering the nature of document of Ex.P.5. Hence, not
a case to invoke Section 100 of CPC.
7. In view of the discussions made above, I pass
the following:
NC: 2025:KHC:48874
HC-KAR
ORDER
i) Second appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same
stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
