Karnataka High Court
Sri Putta Thimmaiah vs Ambalappa on 13 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:40260
RSA No. 1278 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1278 OF 2022 (PAR)
BETWEEN:
1. SRI PUTTA THIMMAIAH
S/O LATE RANGAPPA
AGED 75 YEARS
R/O HEMADALA VILLAGE,
HIRIYUR TALUK
CHITRADURGA DISTRICT - 577 598
2. SRI. RANGANATH
S/O LATE KARIYAPPA
AGED 60 YEARS
R/O HEMADALA VILLAGE,
Digitally signed HIRIYUR TALUK
by DEVIKA M
CHITRADURGA DISTRICT - 577 598
Location: HIGH
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI BIMBADHARA H M, ADVOCATE)
AND:
1. AMBALAPPA
S/O LATE RANGAPPA
AGED 62 YEARS
R/O HEMADALA VILLAGE,
HIRIYUR TALUK
CHITRADURGA DISTRICT - 577 598
-2-
NC: 2025:KHC:40260
RSA No. 1278 of 2022
HC-KAR
2. THIPPESWAMY
S/O LATE RANGAPPA
AGED 64 YEARS,
R/O HARISCHANDRA GHAT
HIRIYUR TOWN,
CHITRADURGA DISTRICT - 577 598
3. SUNDARESH
S/O LATE KARIYAPPA
AGED 58 YEARS
R/O HEMADALA VILLAGE,
HIRIYUR TALUK
CHITRADURGA DISTRICT - 577 598
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 18.06.2022
PASSED IN R.A.NO.17/2017 ON THE FILE OF THE CIVIL
JUDGE (SR. DN.) AND JMFC, HIRIYUR, CHITRADURGA
AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
-3-
NC: 2025:KHC:40260
RSA No. 1278 of 2022
HC-KAR
ORAL JUDGMENT
This appeal is filed against the judgment and decree
of the First Appellate Court wherein the First Appellate
Court granted the relief in respect of Item No.2 of the suit
schedule property which was declined by the Trial Court.
2. Heard the learned counsel appearing for the
appellants.
3. The factual matrix of case of the plaintiffs
before the Trial Court while seeking the relief of partition
and separate possession of half share over the suit Item
No.1 in favour of the plaintiff No.1 and 1/6th share each
towards the plaintiffs in suit Item No.2 is that one
Ambalappa had got four sons. The first son namely
Mudhlappa expired leaving behind one Hanumanthappa
who left the house and not heard for about 30 years. The
second son namely Kariyappa expired leaving behind two
sons viz., Ranganath and Sundresh. The third son -
Rangappa expired leaving behind three sons viz.,
NC: 2025:KHC:40260
HC-KAR
Puttathimmaiah that is first defendant, Tippeswamy i.e.,
second plaintiff and Ambalappa i.e., first plaintiff. The
fourth son - Nagappa expired having no issues and said
Nagappa's wife - Biliyamma also expired during the
lifetime of Nagappa. The suit Item No.2 belongs to
Nagappa son of Ambalappa. After his death, the plaintiffs
and defendants become the absolute owners of the suit
Item No.2. The katha in respect of Item No.2 was mutated
in the name of first defendant under I.H.C. No.5/89-90.
The difference arose between the plaintiffs and defendants
with respect to the sharing of crops raised over the suit
Item No.2 of the property. Hence the plaintiffs asked for
their share over suit Item No.2 of the property. The first
defendant refused to give the share of the plaintiffs over
suit schedule Item No.2 of the property.
4. The plaintiffs and first defendant got partitioned
their joint family properties under registered partition
dated 03.03.2005. At that time, the suit Item No.1 had
been allotted to the share of first plaintiff and first
NC: 2025:KHC:40260
HC-KAR
defendant jointly. But at the time of said partition, the suit
Item No.2 was not included by mistake or inadvertence.
Now the difference arose between the first plaintiff and
first defendant pertaining to suit item No.1 property.
Plaintiff No.1 is also seeking his half share right over the
suit Item No.1 of the property. Hence, prays for the relief
for partition and separate possession.
5. In response of the suit summons, defendant
Nos.1 to 3 have appeared through their counsel and first
defendant filed the written statement. The first defendant
admits the relationship between the parties as pleaded in
the plaint. The first defendant also further contended that
plaintiffs and first defendant are the brothers and they are
the sons of late Ambalappa and they have partitioned the
properties as per partition deed dated 03.03.2005. When
the partition deed was made, plaintiff was not intended to
get share in respect of Re-Sy.No.14/P2 since he was
interested to purchase another property in Re-
Sy.No.13/2B2P along with one Mahalingappa from
NC: 2025:KHC:40260
HC-KAR
Hanumappa, Meghamma and Tippeswamy. Hence, the
plaintiffs have borrowed cash from first defendant and
purchased 1 acre 36 guntas of land in Re-Sy.No.13/2B2P.
The plaintiffs also suppressed another fact that second
plaintiff already sold 2 acres 28 guntas of land in Re-
survey No.377 of Hemadala Village which was standing in
his name and hence, prayed the Court to dismiss the suit.
6. The Trial Court having taken note of the
material on record framed the Issues and answered Issue
No.1 as negative in coming to the conclusion that the suit
schedule properties are not the ancestral and joint family
properties of plaintiffs and defendants. The Trial Court
answered Issue No.2 as partly in the affirmative and Issue
Nos.3 to 6 as negative and granted the relief in respect of
Item No.1 of the suit schedule property in respect of half
share and division of 1/6th share in suit Item No.2 was
dismissed. The said judgment was challenged by the
plaintiffs before the First Appellate Court in
R.A.No.17/2017.
NC: 2025:KHC:40260
HC-KAR
7. The First Appellate Court having reassessed
both oral and documentary evidence placed on record and
also considering the grounds which have been urged in the
appeal, framed the Points for consideration and allowed
the appeal in part confirming the judgment and decree of
the Trial Court in respect of Item No.1 of the suit property
and modified the judgment and decree in respect of Item
No.2 of the suit property granting 1/6th share each to the
plaintiffs and defendants observing that in fact after
disclosing about missing of said Hanumanthappa, the
plaintiffs have clearly stated that they and defendant
Nos.1 to 3 are having 1/6th share each in suit Item No.2
property. But very strangely the Trial Court gave the
finding which no one has imagined in a given situation.
The First Appellate Court also taken note of the material
on record that there is a registered partition deed in
respect of Item No.1 of the suit schedule property i.e.,
there was a partition deed dated 03.03.2005 and the said
Item has been equally divided between first plaintiff and
NC: 2025:KHC:40260
HC-KAR
first defendant. It is most relevant to note that second
plaintiff and other defendants have not objected to this
arrangement between first plaintiff and first defendant.
Therefore, the finding of the Trial Court with respect to
Item No.1 property is proper. Further, considering the
material on record in respect of Item No.2 is concerned,
an observation is made that the Trial Court in respect of
Item No.2 is concerned taken note of missing of
Hanumanthappa since the parties are not at issue about
Hanumanthappa's missing and also their entitlement to
1/6th share in suit Item No.2 property. As such, by
drawing a presumption under Section 107 and 108 of the
Evidence Act, the First Appellate Court held that said
Hanumanthappa is dead in the eye of law. If
Hanumanthappa is dead, then the question of allotting one
share to him does not arise and the plaintiffs could have
approach the Civil Court for declaration of death of
Hanumanthappa but decree about death of a human being
is not necessary more so where there is no dispute at all.
NC: 2025:KHC:40260
HC-KAR
8. Having made such an observation, the
Appellate Court also considering the material on record in
paragraph '21' has discussed the same with regard to the
entitlement of 1/6th share each in respect of item No.2 of
the property by partition by metes and bounds, and so
also in paragraph '22' has taken note of the very
contention of defendant No.1 before the Trial Court that he
made the payment in respect of item No.2 and also
examined two witnesses, D.W.2 and 3 for having made
the payment. But the Appellate Court comes to the
conclusion that there is nothing on record, either in the
sale deed or in any document, for having made the
payment towards the right of the plaintiff in respect of
item No.2 of the property. Hence, the Appellate Court
comes to a conclusion that the plaintiff is also entitled to a
share in respect of item No.2 of the suit schedule
property, i.e., 1/6th share.
9. Being aggrieved by the said reversal, the
present second appeal is filed by the defendant/appellants
- 10 -
NC: 2025:KHC:40260
HC-KAR
before this Court. The main contention of the counsel
appearing for the appellants before this Court is that the
First Appellate Court committed an error in granting the
share in favour of the plaintiffs in respect of item No.2 of
the suit schedule property. In believing the version of the
plaintiffs, committed an error in granting equal partition of
the joint family properties after selling the properties
allotted to their share with the earlier partition of the
family by way of a registered partition deed and ought not
to have granted the relief by the Appellate Court in respect
of item No.2.
10. Having heard the learned counsel for the
appellants and also the counsel for the appellants main
contention before this Court is that in respect of the share
of the plaintiff No.2 is concerned already an amount was
given by the defendant No.1, since defendant No.1 has
taken specific defence for having made payment in favour
of plaintiff No.2 particularly in respect of item No.2 of the
property is concerned and also counsel would vehemently
- 11 -
NC: 2025:KHC:40260
HC-KAR
contend that by examining the witness D.W.2 and 3 the
factum of payment is proved and the Appellate Court
having reassessed the material came to the conclusion
that there is no such recital in the sale deed and apart
from that the plaintiffs have not executed any document in
favour of defendant No.1 creating any right in respect of
item No.2 of the property. Since the Trial Court has also
given the finding in respect of issue No.3,the plaintiffs
have not relinquished their right in the suit item property
by receiving the cash from defendant No.1. When such an
issue was answered by the Trial Court and also when the
defence was taken by defendant No.1 that he made the
payment to prove the said fact, no documentary proof was
produced before the Court and also no documents were
placed before the Court for having relinquished their right
in respect of the property concerned.
11. When such being the case, in the absence of
any documentary proof for having relinquished the right
by the plaintiffs, the very contention of the counsel
- 12 -
NC: 2025:KHC:40260
HC-KAR
appearing for the appellants/ defendant No.1 that
payment was made and the same is substantiated by
examining D.W.2 and 3 and the said contention cannot be
a ground to accept the contention in the absence of
documentary proof and the fact that the property belongs
to the family is also not in dispute and the fact that
Hanumanthappa is also no more. In view of the missing
person and also the invoking of presumption under Section
107 of the Evidence Act, though counsel appearing for the
appellants would vehemently contend that there is no
declaration that he is no more, the fact that he has been
missing for more than seven years, and when the
presumption is, if a person is not found more than seven
years, there is also a presumption. Hence, the very
contention of the learned counsel appearing for the
appellant cannot be accepted, and in the absence of any
documentary proof for having relinquished the right by the
plaintiffs, the question of admitting the second appeal
does not arise and there is no any substantial question of
- 13 -
NC: 2025:KHC:40260
HC-KAR
law. Hence, I do not find any ground to admit the appeal
and for framing of substantial question of law.
12. In view of the above discussions made, I pass
the following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN/GJM
