Karnataka High Court
Shri Bhau Babu Kurundawade vs Shri Prakash Babu Pawar on 3 November, 2025
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NC: 2025:KHC-D:14908
RSA No. 100418 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 3RD DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100418 OF 2024 (DEC/INJ)
BETWEEN:
SHRI BHAU BABU KURUNDAWADE
AGE: 72 YEARS, OCC. AGRICULTURE,
R/O. SHIRAGUPPI, TQ. ATHANI-591304,
DISTRICT: BELAGAVI.
...APPELLANT
(BY SRI. B.S. KAMATE, ADVOCATE)
AND:
1. SHRI PRAKASH BABU PAWAR
AGE: 41 YEARS, OCC. AGRICULTURE,
R/O. SHIRAGUPPI, TQ. ATHANI-591304,
DISTRICT: BELAGAVI.
YASHAVANT 2. SMT. KAVITA
NARAYANKAR W/O. NARAYAN MANJURE,
Digitally signed by AGE: 51 YEARS, OCC. HOUSEHOLD WORK,
YASHAVANT
NARAYANKAR R/O. BUBANAL TQ. SHIROL-416103,
Date: 2025.11.05
14:27:41 +0530 DISTRICT: KOLHAPUR,
STATE: MAHARASHTRA.
3. SMT. SAVITRI
W/O. MURALI MAJARE,
AGE: 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. BUBANAL TQ. SHIROL-416103,
DISTRICT: KOLHAPUR,
STATE: MAHARASHTRA.
SHRI BABU YALLAPA PAWAR
SINCE DECEASED BY HIS LRS.
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RSA No. 100418 of 2024
HC-KAR
4. SHRI ASHOK ANAND KANERI
AGE: 71 YEARS, OCC. AGRICULTURE,
R/O. SHIRAGUPPI, TQ. ATHANI-591304,
DISTRICT: BELAGAVI.
5. SHRI AMUL ASHOK KANERI
AGE: 38 YEARS, OCC. AGRICULTURE,
R/O. SHIRAGUPPI, TQ. ATHANI-591304,
DISTRICT: BELAGAVI.
6. SHRI RANJIT ASHOK KANERI
AGE: 38 YEARS, OCC. AGRICULTURE,
R/O. SHIRAGUPPI, TQ. ATHANI-591304,
DISTRICT: BELAGAVI.
...RESPONDENTS
(BY SRI. PRASAD R. SIDHANTI, ADVOCATE FOR C/R1 TO C/R3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 13.03.2024 PASSED BY THE
VII ADDITIONAL DISTRICT AND SESSION JUDGE, BELAGAVI,
SITTING AT CHIKKODI IN R.A.NO.79/2020 AND THE JUDGMENT
AND DECREE DATED 26.02.2020 PASSED BY THE PRL. SENIOR
CIVIL JUDGE ATHANI IN O.S.NO.59/2012 AND FURTHER THE SUIT
O.S.NO.59/2012 MAY KINDLY BE DECREED AS PRAYED FOR BY
ALLOWING THIS RSA IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100418 of 2024
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel appearing for the appellant
and the respondent.
2. The appellant is the plaintiff in O.S.No.59/2012,
who was non-suited by the Trial Court as well as the First
Appellate Court in R.A.No.79/2020.
3. The appellant/plaintiff is the purchaser of the suit
schedule property under a registered sale deed dated
23.04.1998 from the defendant No.4 for consideration of
₹1,30,000/-. The defendant No.4 was member of the joint
family and in the suit filed among the members of the joint
family for partition i.e., in O.S.No.75/1998, the defendant
No.4 was allotted certain share. The Courts below held that
the declaration that the plaintiff is the owner in possession
in respect of the suit schedule property measuring 4 acres
20 guntas in RS No.203/2 and 203/3 cannot be granted
since the share of the defendant No.4 is governed by the
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decree passed in O.S.No.75/1998 and as such, issue No.1 is
hit by the principle of res-judicata. On that ground, the Trial
Court as well as the First Appellate Court dismissed the suit
of the plaintiff/appellant.
4. Being aggrieved, the plaintiff is before this Court.
The learned counsel appearing for the appellant submits
that when the sale deed is held to be proved by both the
Courts below, the result and effect was to decree the suit to
the extent of the share of the defendant No.4, who was the
vendor of the plaintiff. It is contended that both the Courts
could not have dismissed the suit in entirety and they could
have restricted to the share that may be allotted to the
defendant No.4 in the inter se partition between him and his
family members.
5. The learned counsel appearing for the
respondent submits that the appellant/plaintiff is at liberty
to approach the Court which passed the preliminary decree
for partition in final decree proceedings and then seek
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appropriate remedy to demarcate his share in the share
that may be allotted to his vendor i.e. defendant No.4. It is
contended that the remedy of the appellant was to file a
suit for partition and if there is already a suit pending, to
implead himself in the same and seek equitable relief for
allotment of property that may fall to the share of
defendant No.4.
6. It is worth to note that the Trial Court as well as
the First Appellate Court have upheld the binding nature of
earlier partition suit. The relevant paragraph, as stated by
the First Appellate Court, reads as follows:
"It is not in dispute that the present plaintiff
was one of the defendants in the said O.S.
No.75/1998 as he admitted in cross--
examination and the subject matter of both the
suits is same i.e. land bearing R.S. No.203/3A.
Since the material issue in regard to the suit
property that it is the joint family property
involving the rights and share of the present
defendants No.1 to 3 and wife of the defendant
No.4 has been determined in the said suit, said
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issue cannot be reopened in the present suit.
Therefore, the claim/suit of the plaintiff is hit by
the principle of res-judicata and doctrine of lis--
pendens."
7. Thus, the defendant No.4 cannot have any
grievance in respect of the said sale deed. If the defendant
No.4 is a party in the suit for partition i.e., O.S.No.75/1998,
then the appellant is at liberty to approach the Court, which
is hearing O.S.No.75/1998, either in the suit or in the final
decree proceedings and seek appropriate remedy. It is trite
law that if the defendant No.4 has sold excess land than
that may be allotted to his share, then the
appellant/plaintiff would not be entitled to that extent. The
appellant can certainly claim his share to the extent of the
sale deed that was executed in his favour in the property
that may be allotted to defendant No.4. The appellant may
also seek an equitable relief from the court, which is
effecting the partition.
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8. Learned counsel appearing for the appellant
submits that the First Appellate Court and the Trial Court
could have exercised their powers under Order VII Rule 7 of
CPC in moulding the relief. It seems no such prayer was
made before the Courts below and therefore, the reliefs
claimed by the plaintiff/appellant could not be granted and
both the Courts below have rightly dismissed the suit.
9. With the above observation, the appeal does not
require any meritorious hearing and as such, the same is
dismissed observing that the appellant is at liberty to
approach the Court, which is dealing with the final decree
proceedings in O.S.No.75/1998 and seek equitable relief.
10. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
SD/-
(C M JOSHI)
JUDGE
YAN, CT:PA
