Karnataka High Court
Sri Giridhar K vs Sri. Dasharathi K on 9 October, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 1902 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 1902 OF 2025 (PAR)
BETWEEN:
1. SRI. GIRIDHAR K.
S/O. KUPPUSWAMY,
AGED ABOUT 64 YEARS,
R/AT NO. 1357, 2ND STAGE,
WEST OF CHORD ROAD,
MAHALAKSHMIPURAM,
BANGALORE - 560 086.
...APPELLANT
(BY SRI. MANJUNATH S.N., ADVOCATE)
AND:
Digitally signed
by
SHARADAVANI 1. SRI. DASHARATHI K.
B
Location: High S/O. M.S. KUPPUSWAMY,
Court of
Karnataka AGED ABOUT 72 YEARS,
R/AT NO.11, 1ST MAIN,
KHB COLONY, VIVEKANANDA NAGAR,
HOSAKOTE,
BANGALORE RURAL DISTRICT.
2. SRI. PADMANABHA K.
S/O. M.S. KUPPUSWAMY,
AGED ABOUT 69 YEARS,
R/AT NO.87, 6TH MAIN,
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RFA No. 1902 of 2025
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SHANKARA NAGAR
BANGALORE - 560 096
3. SMT. JAYASHREE K
W/O LATE SUKHATHIRTHA K
AGED ABOUT 64 YEARS
R/AT NO. 130, 6TH MAIN,
POSTAL COLONY, SANJAYNAGAR
BANGALORE - 560 94
...RESPONDENTS
(BY SRI. B.N. MURALIDHAR, ADVOCATE FOR C/R1 AND C/R2
SRI. M. MADHAVACHAR, ADVOCATE FOR C/R3)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 28.03.2025
PASSED IN OS NO.4396/2017 ON THE FILE OF LXII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU CITY (CCH-63)., DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
This appeal by the defendant No.2 in OS 4396 of 2017 is
directed against the impugned judgement and decree dated
28.03.2025 passed by the LXII Additional City Civil and
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Sessions at Bangalore, whereby the said suit filed by the
respondents No.1 and 2 - plaintiffs against appellant -
defendant No.2 and responded No.3 - defendant No.3 for
partition and separate possession of their alleged share in the
suit schedule immovable property was decreed by the trial
Court in favour of the plaintiff and against the defendant.
2. Heard learned counsel for appellant and learned
counsel for respondents No.1 and 2 and learned counsel for
respondent No.3 and perused the material on record. With the
consent of both sides, though the matter is posted for
admission, the same is taken up for final disposal.
3. A perusal of the material on record will indicate that
the relationship between the parties is not in dispute in as
much as that the respondents No.1 and 2 are none other than
the children of M S Kuppuswamy and Smt. Vasantha
Kuppuswamy. The plaintiffs filed the instant suit against their
mother Smt. Vasantha Kuppuswamy (defendant No.1), their
brother - appellant (defendant No.2) and their sister Jayashree
(defendant No.3) seeking partition and separate possession of
their alleged share in the suit schedule property on the ground
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that the said property belonged absolutely to their father Mr.
Kuppuswamy, who was missing from 1972 onwards and by
virtue of Section 108 of the Indian Evidence Act, he is deemed
to have died a civil death and consequently all the parties
would be entitled to their legitimate share in the suit schedule
properties. The appellant - defendant No.2 as well as the
mother Smt. Vasantha Kuppuswamy - defendant No.1 filed
their written statement inter alia contending that the suit
schedule property was the separate and self acquired property
of defendant No.1 and neither the plaintiffs nor defendant No.3
were entitled to claim a share in the suit schedule property
during the lifetime of defendant No.1. It was also contended
that after the aforesaid Kuppuswamy went missing, one more
property i.e., land bearing Sy. No.155 measuring 4 acres 22
guntas situated at Adivala village, Hiriyur taluk, Chitradurga
district was alienated by all the parties to the suit and the sale
consideration was utilised for the purpose of putting up
construction and development of a house i.e., house number
11, KHB colony near Citizen School, Hoskote and the said
property having not been included among the suit schedule
property, the suit was bad for non joinder of necessary
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properties. It was therefore contended that the suit was liable
to be dismissed.
4. The defendant No.3 - sister filed a written
statement supporting the claim of the plaintiff and sought for
partition and separate possession of her legitimate share in the
suit schedule property.
5. Based on the aforesaid pleadings, the trial Court
framed the following issues -
1. Whether the plaintiffs proves that the suit
schedule property is the Joint Family property of
plaintiffs and defendants?
2. Whether the first defendant proves that
the suit schedule property is the self acquired
property of first defendant?
3. Whether the defendant proves that suit
of the plaintiff is bad for non joinder of necessary
properties?
4. Whether the plaintiff is entitled for the
relief as claimed?
5. What Order?
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6. The plaintiff examined himself as PW.1 and
documentary evidence at EXs.P1 to P12 were marked. The
defendant No.3 examined herself as DW.1 and while defendant
No.2 examined himself as DW.2 and documentary evidence at
EXs.D1 and D2 were marked.
7. It is relevant to state that during the pendency of
the suit, the defendant No.1 Smt. Vasantha Kuppuswamy died
intestate leaving behind the plaintiffs - defendant Nos.2 and 3
to succeed to her estate including the suit schedule property as
her only heirs and legal representatives. Under these
circumstances, though the defendant No.1 had taken up a
specific contention that suit schedule property was her separate
absolute and self acquired property, since she has died
intestate leaving behind the plaintiffs and defendants No.2 and
3 to succeed to the suit schedule property as her heirs and
legal representatives, the trial Court answered issues 1 and 2 in
favour of the plaintiffs by declaring that they are entitled to
1/4th share each in the suit schedule property. Insofar as
issue No.3 pertaining to non-joinder of necessary properties are
concerned, the trial Court recorded the following findings -
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" 18. Issue No.3 : Defendant has taken
contention that suit of the plaintiff is not
maintainable for non joinder of necessary parties to
the suit. That the plaintiffs have filed the suit
against their mother and their brother excluding
their sister Jayashree K. After framing the issues,
when case is posted for evidence, then plaintiffs
have amended the plaint and Jayashree K made as
party in this suit. Apart from plaintiffs, defendant
Nos.2 and 3 none are necessary parties to the suit.
However defendant No.2 has not placed any
documents nor evidence to come to conclusion that
suit of the plaintiff is bad for non joinder of
necessary parties. Defendant No.3 who is the
daughter of Dr. M S Kuppuswamy and Vasantha
Kuppuswamy and she has filed the written
statement stating that in the suit schedule property
she is also entitled to get share. Therefore I
answer issue No.3 in the Negative."
8. It is this finding recorded on issue
No.3 that is assailed by the appellant - defendant No.2 in the
present appeal. In support of this contention, the appellant -
defendant No.2 specifically contends that the property standing
in the name of the plaintiff No.1 was developed and constructed
by utilising the funds belonging to the joint family and
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consequently the appellant would be entitled to a share in the
said property also and since a suit for partial partition was not
maintainable without including this property, the trial Court
committed an error in answering issue No.3 against the
appellant - defendant No.2 and decreeing the suit in favour of
the respondents - plaintiffs.
9. Per contra, it is the specific contention of the
respondents - plaintiffs and defendant No.3 that the properties
standing in the name of the plaintiff No.1 was his separate and
self acquired property and that the development and
construction of the said property was done exclusively by
plaintiff No.1 out of his personal funds and by obtaining a loan
which was repaid solely by plaintiff No.1 and that the defendant
No.2 was not entitled to claim any share in the said property
and that the trial Court was fully justified in decreeing the suit
in favour of the respondents - plaintiffs against the appellant -
defendant No.2 without including this property also.
10. A perusal of the impugned judgment and decree, in
particular para 18 with reference to issue No.3 will indicate that
though the said issue was framed in relation to non-joinder of
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necessary properties, the trial Court has failed to consider and
appreciate the said issue and has erroneously answered the
said issue on the premise that the said contention was in
relation to non joinder of necessary parties. It is also a matter
of record that the respondents No.1 and 2 - plaintiffs and
respondent No.3 - defendant No.3 have already instituted final
decree proceedings in FDP Nos.163/25 and 164/25 which are
pending before the Final Decree Court. Under these
circumstances, in the absence of any finding recorded by the
trial Court on issue No.3 regarding non joinder of necessary
properties, and in order to prevent multiplicity of proceedings
and to give a finality/quietus to the litigation between the
parties, I deem it just and appropriate to dispose of the appeal
without interfering with the impugned judgement and decree
and by directing all rival contentions between the parties in
relation to the contention in relation to the property standing in
the name of plaintiff No.1 to be adjudicated upon and decided
in the said final decree proceedings and without expressing any
opinion on the merits/demerits of the rival contentions and
keeping the same open to be decided in the final decree
proceedings. Under these circumstances, I am of the view that
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the impugned judgement and decree passed by the trial Court
decreeing the suit in favour of the plaintiff in relation to the
sole item of suit schedule property deserves to be confirmed
and upheld by directing the rival contentions between the
parties as regards the property standing in the name of plaintiff
No.1 to be adjudicated upon during final decree proceedings by
leaving open all contentions.
11. In the result, appeal is hereby disposed of without
interfering with the impugned judgement and decree dated
28.03.2025 passed in O.S. No.4396/2017 by the LXII
Additional City Civil and Sessions Judge at Bengaluru. The
impugned judgement and decree passed by the trial Court
directing partition and separate possession of 1/4th share each
of the plaintiffs and defendants No.2 and 3 in the suit schedule
property is hereby confirmed.
12. All rival contentions between the parties as regards
the claim of the appellant - defendant No.2 in relation to the
another property standing in the name of plaintiff No.1 are left
open to be decided by the final decree Court during the course
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of final decree proceedings and no opinion is expressed on the
merits/demerits of the rival contentions.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
YKL
