Karnataka High Court
Ashwini D/O Shivaji Jadhav vs Subani S/O Bhavani Jadhav on 25 October, 2025
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NC: 2025:KHC-D:14243
RSA No. 100767 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 25TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100767 OF 2019 (PAR)
BETWEEN:
1. ASHWINI D/O. SHIVAJI JADHAV,
NOW W/O. ANIL PADATARE,
AGED ABOUT 24 YEARS, OCC. HOUSEHOLD WORK,
2. SMT. NEELABAI W/O. SHIVAJI JADHAV,
AGED ABOUT 49 YEARS, OCC. HOUSEHOLD WORK,
BOTH ARE R/O. KAJIBILAGI,
JAMKHANDI TALUK, BAGALKOTE DISTRICT.
...APPELLANTS
(BY SRI. ANIL KALE, ADVOCATE)
AND:
SUBANI S/O. BHAVANI JADHAV,
SINCE DECEASED BY HIS LRS.,
1.
YASHAVANT SHIVAJI S/O. SUBANI JADHAV,
NARAYANKAR AGED ABOUT 54 YEARS, OCC. AGRICULTURE,
Digitally signed by
YASHAVANT
2. SAMBAJI S/O. MARUTI NALAWADE,
NARAYANKAR AGED ABOUT 54 YEARS, OCC. AGRICULTURE,
Date: 2025.10.29
10:57:48 +0530
BOTH ARE R/O. KAJIBILAGI,
JAMKHANDI TALUK, BAGALKOTE DISTRICT.
...RESPONDENTS
(BY SRI. SHIVAKUMAR APARAJ, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR C/R2;
R1-DISPENSED WITH)
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 19.09.2019 PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE, BAGALKOTE, TO SIT AT JAMKHANDI, IN
R.A.NO.81/2016 DISMISSING THE JUDGMENT AND DECREE DATED
27.10.2016 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND JMFC,
JAMKHANDI IN O.S.NO.228/2007.
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NC: 2025:KHC-D:14243
RSA No. 100767 of 2019
HC-KAR
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
Heard the learned counsel for the appellants/plaintiffs No.1
and 2.
2. The factual matrix of the case is that, the plaintiff No.
1 is the daughter and plaintiff No. 2 is the wife of one Shivaji
Jadhav, who is the defendant No. 2. The defendant No. 1 is
father of the defendant No.2. The plaintiffs contended that they
being wife and daughter of the defendant No.2 are entitled for a
partition in the suit schedule properties, which are owned by the
defendant No.1 and the defendant No.2 as members of the joint
family. The properties included Survey No.274/3 measuring 3
acres 30 guntas and Survey No. 147/1 measuring 22 acres 32
guntas and also a house property bearing VPC No.181/A situated
at Kajibilagi village in Jamkhandi Taluk. They further contented
that the defendant No.3 had purchased R.S.No. 274/3 measuring
3 acres 30 guntas from the defendant No.1 without knowledge to
the plaintiffs and the defendant No.2 for a consideration of
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₹1,50,000/- under a sale deed dated 30.07.2007. They also
contended that the said transaction is not binding on them. It
was alleged that the plaintiffs demanded their share in the suit
schedule properties and when it was denied, they were
constrained to file the suit. They also contended that the
defendant No.2 was insane and therefore, they have no
knowledge of any partition between the defendant No.1 and
defendant No.2.
3. On appearance, the defendant No.1 contended that
though the defendant No.2 is his son, he denied the relationship
of the plaintiffs and the defendant No.2. In other words, he
denied that the defendant No.2 was married to the plaintiff No.2.
He justified the selling of the Survey No. 274/3 to the defendant
No.3 contending that since there were none to look after him, he
was constrained to sell the same to the defendant No.3 for his
livelihood at his age of 75 years.
4. The defendant No.3-the purchaser contended in his
written statement that he has purchased the suit schedule
property under the bonafide belief that the defendant No.1 is the
owner in title of the suit schedule property and therefore, the
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claim of the plaintiffs is untenable. He also challenged the locus
standi of the plaintiffs to claim any share in the suit schedule
properties. On basis of the above claim, the following issues
were framed by the Trial Court:
«ªÁzÁA±ÀUÀ¼ÀÄ
"1. ªÁ¢AiÀÄgÀÄ vÁªÀÅ 2£Éà ¥ÀæwªÁ¢AiÀÄ ºÉAqÀw ªÀÄvÀÄÛ
ªÀÄUÀ¼ÀÄ JAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉ?
2. ªÁ¢AiÀÄgÀÄ zÁªÁ D¹ÛAiÀÄ°è ¥Á®£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÉ?
ºÁVzÀÝgÉ JµÀÄÖ?
3. zÁªÁ D¹ÛUÀ¼À°è FUÁUÀ¯Éà ¥Á®Ä «¨sÁUÀ DVzÉ JAzÀÄ
¥ÀæwªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉ?
4. ¥ÀæwªÁ¢ £ÀA§gÀ 3 vÁ£ÀÄ AiÉÆÃUÀå ¨É¯ÉUÉ ¤µÀÌ¥Àl
RjâzÁgÀ£ÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀ£É?
5. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?"
5. The Trial Court answered the Issue Nos.1, 3 and 4 in
the affirmative and Issue No.2 partly in the affirmative and
proceeded to decree the suit. While decreeing the suit, the
following order came to be passed by the Trial Court.
ORDER
The suit of the plaintiffs is hereby partly
decreed.
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The plaintiffs are entitled their legitimate
share in schedule 'A' property bearing
R.S.No.147/1 measuring 22 acres 32 guntas of
Kajibilagi village and also schedule 'B' house
property bearing VPC No.181/A of Kajibilagi village.
Draw the preliminary decree accordingly.
6. At this juncture itself, it would be proper to notice
that the operative portion of the judgment of the Trial Court does
not answer the Issue No.2 fully. It did not determine the share of
the plaintiffs in the suit schedule properties, but left it by saying
that legitimate share of the plaintiffs to be given. Being agreed
by the exclusion of Survey No. 274/3 from the decree, the
plaintiffs approached the First Appellate Court in
R.A.No.81/2016. Strangely, the First Appellate Court once again
went into the question of relationship between the plaintiffs and
the defendant No.2, which was not appealed against and held
that the plaintiffs have not proved the relationship with the
defendant No.2. After holding that relationship is not proved, the
appeal was dismissed and also the suit was dismissed. When the
appeal is dismissed, the question of dismissal of the suit in its
entirety does not arise. It is relevant to note that the defendant
No.1 or defendant No.3 had not filed any appeal against the
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decree passed by the Trial Court. Being aggrieved by the same,
the plaintiffs have approached this court in second appeal.
7. After hearing the learned counsel appearing for the
appellants, the following substantial question of law was framed
by this court.
"Whether the First Appellate Court is justified
in going beyond a scope of the appeal in
dismissing the suit filed by the appellants,
which was partly decreed by the Trial Court?"
8. The cardinal principle of the appeal appears to have
not been followed by the First Appellate Court. It is pertinent to
note that in the grounds of appeal that were taken up in the
appeal memo of the First Appellate Court, nowhere the
appellants/plaintiffs had questioned anything about the finding of
the Trial Court regarding relationship between plaintiffs and
defendant No.2. The entire contention of the appellants herein
was that the decree of the Trial Court has to be modified by
including Survey No.274/3 in the decree and that the share of
the plaintiffs in all suit schedule properties has to be determined
and they contended that such share is 1/3rd. The perusal of the
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judgment of the First Appellate Court would show that even
though the question of relationship of the plaintiffs with the
defendant No.1 and 2 was not open or was challenged by the
defendant No.1 or defendant No.3, the First Appellate Court was
not justified in entering into such question, which was not at all
pressed by any of the parties. Obviously, the defendant No.1 and
the defendant no. 3 did not challenge the decree, which had
granted the share to the plaintiffs. Therefore, in the absence of
any appeal by the defendant No.1 and defendant No.3,
challenging the decree passed by the Trial Court, a question
which was not at all pressed by either of the parties was
considered by the First Appellate Court and it went into the proof
of the relationship and held that such relationship is not proved.
Therefore, it is evident that the First Appellate Court went
beyond the scope of the appeal, which was before it. Under these
circumstances, the First Appellate Court has definitely erred in
going beyond the scope of the appeal. A reading of the judgment
of the First Appellate Court would not show that any argument
was advanced by the defendant No.1 and defendant No.3
regarding the relationship between the parties. There being no
such argument canvassed on behalf of the defendant No.1 and 3,
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the First Appellate Court suo-motu goes into such question,
which was not before it and renders the impugned judgment.
Therefore, prima facie, the First Appellate Court has erred in
dismissing the suit in its entirety. While dismissing the appeal, it
failed to perceive that the appeal was only in respect of non-
inclusion of Survey No.274/3 in the decree. Hence, the impugned
judgment of the First Appellate Court is not sustainable in law.
9. It is pertinent to note that the Trial Court though had
to give a finding on the extent of the share of the plaintiffs, it
leaves it open saying that a legitimate share of the plaintiffs had
to be given to them. Such determination of the share is not
found in the operative portion of the order. The Issue No. 2 to 4
were considered together and a reading of the impugned
judgment does not show that the share of the plaintiffs were
determined in any way. Though the plaintiffs had claimed 1/3rd
share, it was not determined by the Trial Court.
10. The First Appellate Court also in its enthusiasm to
consider the question of relationship doesn't determine the share
or it does not deal with the said question. Therefore, firstly, the
First Appellate Court erred in going beyond the scope of the
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appeal and secondly, it failed to consider the error committed by
the Trial Court in not determining the share of the plaintiffs.
Under these circumstances, the impugned judgment deserves to
be set aside and the matter requires to be remanded to the First
Appellate Court, which is empowered to consider the question of
fact also and to take any additional evidence if necessary.
11. In other words, the First Appellate Court has to
decide (i) whether the Trial Court is justified in excluding Survey
No.274/3 from the decree on the ground that the defendant No.3
is the bona fide purchaser of the property? and (ii) whether the
Trial Court is right in not determining the share of the plaintiffs in
the suit schedule property despite there being an issue on it?
12. With these observations the appeal succeeds and
hence the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment of the First Appellate Court in
R.A.No.81/2016 is hereby set aside.
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(iii) The matter is remanded to the First Appellate
Court for fresh hearing after giving
opportunities to both the sides and it is
impressed upon the First Appellate Court to
decide the questions framed in the body of this
judgment.
(iv) Both the parties are directed to appear before
the First Appellate Court on 01.12.2025
without waiting for any notice from the First
Appellate Court.
SD/-
(C M JOSHI)
JUDGE
YAN
CT:PA
