Karnataka High Court

Smt. Veeramma W/O Channabasayya vs Smt Jairabi W/O Rahimsabrewankar on 10 September, 2025

Author: S.R. Krishna Kumar

Bench: S.R. Krishna Kumar

                                             -1-
                                                       NC: 2025:KHC-D:11737-DB
                                                       RFA No. 100282 of 2022
                                                   C/W RFA No. 100132 of 2022
                                                       RFA No. 100251 of 2022
                   HC-KAR




                        IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
                          DATED THIS THE 10TH DAY OF SEPTEMBER 2025
                                           PRESENT
                         THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                                             AND
                             THE HON'BLE MR. JUSTICE C.M. POONACHA
                        REGULAR FIRST APPEAL NO. 100282 OF 2022 (DEC)
                                             C/W
                            REGULAR FIRST APPEAL NO. 100132 OF 2022
                            REGULAR FIRST APPEAL NO. 100251 OF 2022


                   IN RFA NO.100282 OF 2022:
                   BETWEEN:

                   SMT. VEERAMMA
                   W/O. CHANNABASAYYA HIREMATH,
                   R/BY POA
                   SRI. CHANNABASAYYA @ CHANNAVEERAYYA
                   S/O. PANCHAYYA HIREMATH,
                   AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
Digitally signed   R/O. NEAR CHARANTIMATH, WARD NO.10,
by SAMREEN
AYUB DESHNUR       DIST: BAGALKOT-587101.
Location: HIGH                                                  ...APPELLANT
COURT OF
KARNATAKA          (BY SRI. GANGADHAR GURUMATH, SENIOR COUNSEL FOR
DHARWAD
BENCH                  SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE)

                   AND:

                   1.   VEERABHADRAYYA
                        S/O. SHIVAYOGAYYA HIREMATH,
                        AGE: 62 YEARS, OCC: PRIVATE WORK,
                        R/O. WARD NO.7, HALAPETE, BAGALKOTE-587101.
                           -2-
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                                    RFA No. 100282 of 2022
                                C/W RFA No. 100132 of 2022
                                    RFA No. 100251 of 2022
HC-KAR




2.   SRI. CHANDRASHEKARAYYA
     S/O. VEERABHADRAYYA HIREMATH,
     AGE: 38 YEARS, OCC: PRIVATE WORK,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

3.   SRI. REVANASIDDAYYA
     S/O. VEERABHADRAYYA HIREMATH,
     AGE: 35 YEARS, OCC: PRIVATE WORK,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

4.   SRI. IRAPPA S/O. IRAPPA BALAMI,
     AGE: 70 YEARS, OCC: AGRICULTURE,
     R/O. MUCHKHANDI, BAGALKOTE-587101.

5.   SMT. KALAMMA W/O. IRAPPA BALAMI,
     AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
     R/O. MUCHKHANDI, BAGALKOTE-587101.

6.   SRI. SHIVAPPA
     S/O. MAHADEVAPPA HERAKALLA,
     AGE: 60 YEARS, OCC: AGRICULTURE AND
     BUSINESS,
     R/O. MAHADEVA NILAYA, OLF EMPLOYMENT
     OFFICE, EXTENSION AREA, BAGALKOTE-587101.

7.   SMT. MAHADEVI W/O. DUNGAPPA ELLEMMI,
     AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
     R/O. WARD NO.7, HALAPETH,
     BAGALKOTE-587101.

8.   SMT. JAIRABI W/O. RAHIMSAB REWANKAR,
     AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
     R/O. PLOT NO.2D, SECTOR NO-20,
     NAVANAGAR, BAGALKOTE-587101.

9.   SRI. SUDHAN S/O. RAMDAS REWANKAR,
     AGE: 58 YEARS, OCC: BUSINESS,
     R/O. NEAR KERUDI HOSPITAL,
     VEERESHWAR BANK OPPOSITE,
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                                    RFA No. 100282 of 2022
                                C/W RFA No. 100132 of 2022
                                    RFA No. 100251 of 2022
HC-KAR




     BAGALKOTE-587101.
                                             ...RESPONDENTS

(BY SRI. VISHWANATH HEGDE, ADVOCATE FOR R2 & R3;
    SRI. VENKATESH M. KHARVI, ADVOCATE FOR R8 & R9;
    NOTICE TO R4, R5, R6 AND R7 SERVED;
    R1-DECEASED; R2 & R3 ARE LRS OF DECEASED R1)

     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE
JUDGMENT PASSED AND DECREE DRAWN ON 14.12.2021 IN
RESPECT OF ITEM NO.3 AND 4 SUIT PROPERTIES PASSED IN
O.S.NO.58/2012 BY THE LEARNED I ADDITIONAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BAGALKOTE,
BY ALLOWING THIS APPEAL WITH COSTS THROUGHOUT AS
PRAYED HEREIN IN THE INTEREST OF JUSTICE AND EQUITY.

IN RFA NO.100132 OF 2022:
BETWEEN:


1.   SHRI. IRRAPPA S/O. IRAPPA BALAMI,
     AGE: 70 YEARS, OCC: AGRICULTURE,
     R/O. MUCHAKHANDI, BAGALKOTE-587101.

2.   SMT. KALAMMA W/O. IRAPPA BALAMI,
     AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
     R/O. MUCHAKHANDI, BAGALKOTE-587101.

3.   SHRI SHIVAPPA S/O. MAHADEVAPPA HERAKALLA,
     AGE: 60 YEARS,
     OCC: AGRICULTURE AND BUSINESS,
     R/O. MAHADEVA NILAYA,
     OLD EMPLOYMENT OFFICE EXTENSION AREA,
     BAGALKOTE-587101.
                                           ...APPELLANTS

(BY SRI. V.M. SHEELVANT, ADVOCATE)
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                                    RFA No. 100282 of 2022
                                C/W RFA No. 100132 of 2022
                                    RFA No. 100251 of 2022
HC-KAR




AND:
1.   SHRI VEERAMMA W/O. CHANNABASAYYA
     @ CHANNAVEERAYYA HIREMATH,
     AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
     R/O. NEAR CHARANTIMATH, WARD NO.10
     BAGALKOTE-587101.

2.   SHRI VEERABHADRAYYA
     S/O. SHIVAYOGAYYA HIREMATH,
     AGE: 62 YEARS, OCC: PRIVATE WORK,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

3.   SHRI CHANDRASHEKHARAYYA
     S/O. VEERABHADRAYYA HIREMATH,
     AGE: 38 YEARS, OCC: PRIVATE WORK,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

4.   SHRI REVANSIDDAYYA
     S/O. VEERABHADRAYYA HIREMATH,
     AGE: 35 YEARS, OCC: PRIVATE WORK,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

5.   SMT. MAHADEVI W/O. DUNGAPPA ELEMMI,
     AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

6.   SMT. JAIRABI W/O. RAHIMSAB MURADAKHAN,
     AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
     R/O. PLOT NO.2D, SECTOR NO-20,
     NAVANAGAR, BAGALKOTE-587101.

7.   SMT. SUDHAN S/O. RAMADAS REWANKAR,
     AGE: 58 YEARS, OCC: BUSINESS,
     R/O. NEAR KERUDI HOSPITAL,
     VEERESHWAR BANK OPPOSITE,
                           -5-
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                                    RFA No. 100282 of 2022
                                C/W RFA No. 100132 of 2022
                                    RFA No. 100251 of 2022
HC-KAR




     BAGALKOTE-587101.
                                             ...RESPONDENTS

(BY SRI. GANGADHAR GURUMATH, SENIOR COUNSEL FOR
    SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR R1;
    SRI. VISHWANTH HEGDE, ADVOCATE FOR R3 & R4;
    NOTICE TO R2, R5 & R6 SERVED;
    NOTICE TO R7 HELD SUFFICIENT)

     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC., PRAYING TO CALL FOR THE
RECORDS, ALLOW THE APPEAL AND SET ASIDE JUDGMENT AND
DECREE DATED 14.12.2021 PASSED BY THE I ADDITIONAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
BAGALKOTE, AT: BAGALKOTE IN O.S.NO.58/2012 AND
CONSEQUENTIALLY DISMISS THE SUIT, IN THE INTEREST OF
JUSTICE AND EQUITY.


IN RFA NO.100251 OF 2022:
BETWEEN:


SMT. VEERAMMA
W/O. CHANNABASAYYA HIREMATH, R/BY POA
SRI. CHANNABASAYYA @ CHANNAVEERAYYA
S/O. PANCHAYYA HIREMATH,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEAR CHARANTIMATH, WARD NO.10,
DIST: BAGALKOT - 587101.
                                                ...APPELLANT

(BY SRI. GANGADHAR GURUMATH, SENIOR COUNSEL FOR
    SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE)

AND:

1.   SMT. JAIRABI W/O. RAHIMSAB MUSADEEKKHAN,
     AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
     R/O. PLOT NO.2D, SECTOR NO-20,
     NAVANAGAR, BAGALKOTE-587101.
                           -6-
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                                    RFA No. 100282 of 2022
                                C/W RFA No. 100132 of 2022
                                    RFA No. 100251 of 2022
HC-KAR




2.   SRI. SUDHAN S/O. RAMDAS REWANKAR,
     AGE: 59 YEARS, OCC: BUSINESS,
     R/O. NEAR KERUDI HOSPITAL, VEERESHWAR BANK
     OPPOSITE, BAGALKOTE-587101.

3.   SRI. VEERABHADRAYYA
     S/O. SHIVAYOGAYYA HIREMATH,
     SINCE DECEASED BY HIS LR'S.
     (RESPONDENT NO.4 AND 5 ARE THE
     LEGAL HEIRS, OF THE ABOVE DECEASED
     RESPONDENT NO.3.
     (AMEDNDED VIDE COURT ORDER
     DATED 28/10/2024)

4.   SRI. CHANDRASHEKARAYYA
     S/O. VEERABHADRAYYA HIREMATH,
     AGE: 39 YEARS, OCC: PRIVATE WORK,
     BASAVARAJ S/O. HANMANTAPPA
     @ HANMANTH KOTI,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

5.   SRI. REVANASIDDAYYA
     S/O. VEERABHADRAYYA HIREMATH,
     AGE: 36 YEARS, OCC: PRIVATE WORK,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

6.   SRI. IRAPPA S/O. IRAPPA BALAMI,
     AGE: 71 YEARS, OCC: PRIVATE WORK,
     R/O. WARD NO.7, HALAPETE,
     BAGALKOTE-587101.

7.   SMT. KALAMMA W/O. IRAPPA BALAMI,
     AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
     R/O. MUCHKHANDI, BAGALKOTE-587101.

8.   SRI. SHIVAPPA
     S/O. MAHADEVAPPA HERAKALLA,
     AGE: 61 YEARS,
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                                    RFA No. 100282 of 2022
                                C/W RFA No. 100132 of 2022
                                    RFA No. 100251 of 2022
HC-KAR




     OCC: BUSINESS AND AGRICULTURE,
     R/O. MAHADEVA NILAYA, OLD EMPLOYMENT
     BAGALKOTE-587101.

9.   SMT. MAHADEVI W/O. DUNGAPPA ELLEMMI,
     AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
     R/O. WARD NO.7, HALAPETH,
     BAGALKOTE-587101.
                                         ...RESPONDENTS

(BY SRI. VENKATESH M. KHARVI, ADVOCATE FOR R1 & R2;
    SRI. VISHWANATH HEGDE, ADVOCATE FOR R4 & R5;
    SRI. V.M. SHEELVANT, ADVOCATE FOR R6, R7 & R8;
    NOTICE TO R9 SERVED;
    R3-DECEASED; R4 & R5 ARE LRS OF DECEASED R3)


     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 14.12.2021 ALLOWING OF
COUNTER CLAIM FILED BY DEFENDANT NO.8 AND 9 IN RESPECT
OF ITEM NO.3 AND 4 OF SUIT B PROPERTIES PASSED IN
O.S.NO.58/2012 BY THE LEARNED I ADDITIONAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BAGALKOTE,
BY DISMISSING THE COUNTER CLAIM FILED BY DEFENDANT
NO.8 AND 9 IN RESPECT OF ITEM NO.3 AND 4 OF SUIT
PROPERTIES PASSED IN O.S.NO.58/2012 BY THE LEARNED I
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BAGALKOTE, AND
WITH COSTS THROUGHOUT AS PRAYED HEREIN IN THE
INTEREST OF JUSTICE AND EQUITY.

    THESE APPEALS COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:   THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
          AND
          THE HON'BLE MR. JUSTICE C.M. POONACHA
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                                       RFA No. 100282 of 2022
                                   C/W RFA No. 100132 of 2022
                                       RFA No. 100251 of 2022
HC-KAR




                       ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

All these appeals arise out of the impugned judgment

and decree dated 14.12.2021 passed in OS No.58/2012 by

the I Additional Senior Civil Judge and JMFC, Bagalkote (for

short, 'the Trial Court').

2. The plaintiff is the daughter of late Shivayogayya

and Girijavva who had one more son Veerabhadrayya

(defendant No.1 herein). The defendant Nos.2 and 3 are the

children of defendant No.1. It is an undisputed fact that

Shivayogayya expired on 05.08.1999 and his wife Girijavva

had predeceased in the year 1988 and left behind the

plaintiff and defendant No.1 to succeed as their legal

representatives.

3. The plaintiff instituted the aforesaid suit for

partition and separate possession against her brother

Veerbhadrayya (defendant No.1), and his children who

arrayed as defendant Nos.2 and 3. The suit schedule

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properties comprised of four items of immovable properties.

The defendant Nos.4 and 6 are purchasers of item No.1 of

the suit schedule properties vide registered sale deeds

dated 11.11.2022 (13.11.2022) and 18.12.2002 executed

in their favour by defendant No.1. The defendant No.5 is

the wife of defendant No.4 who executed a relinquishment

deed in respect of item No.1 in her favour. Similarly, the

defendant No.1 sold item No.2 of the suit schedule

properties in favour of defendant No.7 vide registered sale

deed dated 23.08.2007. So also, the defendant No.1 sold

item No.3 of the suit schedule properties in favour of

defendant No.8 vide registered sale deed dated 15.05.2012

and item No.4 of the suit schedule properties in favour of

defendant No.9 vide registered sale deed dated 27.07.2012.

Accordingly, the defendant Nos.4 to 7 are alienees of four

items of suit schedule properties as stated supra.

4. The defendants, in particular defendant No.1, filed

his written statement specifically contending that during the

lifetime of Shivayogayya, the father of both the plaintiff and

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defendant No.1, there was an oral partition within the family. In

this partition, the property bearing CTS No.182/D was allotted to

the share of the plaintiff, who thereafter had the khata changed

to her name and the said land having been submerged, she has

received compensation from the authorities in relation to the said

property. The defendant No.1 further asserted that, pursuant to

the aforesaid oral partition, a document of

surrender/relinquishment was executed by the plaintiff in the

year 2000, wherein she acknowledged the allotment of property

bearing CTS No.182/D to her share and also

relinquishment/giving up of her rights over the remaining

properties in favour of the defendant No.1. It was further

contended that, upon the aforesaid CTS No.182/D being acquired

by the State Government under the Upper Krishna Project, a

rehabilitation plot No.2 in Sector No.20 was allotted in favour of

the plaintiff in lieu of the acquired property. It was therefore

submitted that, by virtue of the earlier partition and the

plaintiff's relinquishment of her claim over the suit schedule

properties, the present suit for partition filed by the plaintiff was

not maintainable and was liable to be dismissed.

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5. The defendants No.4 to 9 would reiterate the same

defence urged by defendant No.1 and also contends that they

were bona fide purchasers for value without notice of the

plaintiff's pre-existing rights. They submitted that the plaintiff's

suit was not maintainable, as defendant No.1, being the absolute

owner of all the suit schedule properties, had lawfully alienated

the same in their favour.

6. The defendants No.8 and 9 also put forth a counter

claim in respect of Item Nos.3 and 4 of the suit schedule

properties, seeking a declaration and injunction against the

plaintiff. It was therefore submitted by the defendants No.4 to 9

that the plaintiff's suit was liable to be dismissed.

7. Based on the pleadings of the parties, the Trial Court

framed the following:

ISSUES

1. Whether the plaintiff prove herself and defendant No.1 to 3 are members of joint family and suit properties and ancestral joint family properties?

2. Whether the plaintiff further proves that she has half share in the suit schedule properties?

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3. Whether the plaintiff further proves that sale deed in between defendant No.1 and 6 dated 11.11.2002 is not binding on plaintiff's share?

4. Whether the plaintiff further proves that the sale deed in between defendant No.1 and 4 dated 18.12.2002, is not binding on the share of plaintiff?

5. Whether the plaintiff further proves that sale deed in between defendant No.7 and deceased Smt. Annapurna dated 23.08.2007 is not binding on the share of plaintiff?

6. Whether the defendants prove that already there is prior oral partition among plaintiff and defendants, during life time and their father Shivayogappa and CTS No.182/D was fallen to her share, and therefore, present suit is not maintainable?

7. Whether the defendants prove that plaintiff has no cause of action to maintain the present suit?

8. Whether the defendants prove that suit filed by the plaintiff is time barred?

9. Whether plaintiff is entitled for the relief sought for?

10. What order or decree?

Additional Issues dated 07.09.2016

1. Whether defendant No.8 proves that she is the absolute owner of the suit property plot No.2 situated

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at Sector No.20 and purchased the same from defendant No.1 as a bonafide purchaser under registered sale deed dated 15.05.2012?

2. Whether defendant No.9 proves that he is the absolute owner of the suit property plot No.1 situated at Sector No.20 and purchased the same from defendant No.1 as a bonafide purchaser under registered sale deed dated 27.07.2012?

3. Whether defendant No.8 is entitled the counter claim as prayed for in W.S?

4. Whether defendant No.9 is entitled the counter claim as prayed for in W.S?

5. What order or decree?

Additional Issues framed on 13.03.2018

1. Whether the suit is not maintainable for non- including the properties mentioned in para No.9 of W.S. of D-1 and para No.10 and 14 of W.S. of D-4 in the Hotch-pot?

2. Whether the court fee paid by the plaintiff is incorrect and not proper?

8. The plaintiff examined her husband/power of attorney

holder as PW.1 and documentary evidence at Exs.P1 to Ex.P46

were marked. The defendants No.1, 4, 6, 8 and 9 examined

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themselves as DW.1 to DW.4 and DW.6 respectively and also

examined two more witnesses as DW.5 and DW.7 and

documentary evidence at Exs.D1 to Ex.D13 were marked on

their behalf.

9. After hearing the respective parties, the Trial Court

partly decreed the suit of the plaintiff in respect of Item Nos.1

and 2 of the suit schedule properties and dismissed the suit in

respect of Item Nos.3 and 4 of the suit schedule properties. So

also, the counter claim filed by the defendants Nos.8 and 9 in

respect of Item Nos. 3 and 4 of the suit schedule properties was

allowed by the Trial Court. Being aggrieved by the dismissal of

the suit in respect of Item Nos.3 and 4 of the suit schedule

properties, the plaintiff has preferred RFA No.100282/2022.

Similarly, being aggrieved by allowing of the counter claim of

defendants No.8 and 9, in respect of Item Nos.3 and 4 of the suit

schedule property, the plaintiff has preferred RFA

No.100251/2022. Likewise, being aggrieved by the impugned

judgment and decree passed by the Trial Court decreeing the

plaintiff's suit in respect of Item Nos.1 and 2 of the suit schedule

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properties, the defendants No.4 to 6 are before this Court by

way of RFA No.100132/2022.

10. The submissions of both the learned counsels have

been considered, and the material on record including the

records of the Trial Court has been perused. The following points

that arise for consideration in the present appeals are:

i) Whether the Trial Court was justified in coming to the conclusion that the defendants have failed to prove plea of earlier partition setup by them as a defence to the claim of the plaintiffs?

ii) Whether the Trial Court was justified in dismissing the suit of the plaintiff and decreeing the counter claim of defendants No.8 and 9 in respect of Item Nos.3 and 4 of the suit schedule properties?

iii)Whether the impugned judgment and decree passed by the Trial Court warrants interference of this Court in the present appeals?

Regarding Point No.(i):

11. Before we advert to rival contentions, it is necessary

to note that the relationship between the parties is not in

dispute. It is also undisputed that Shivayogayya passed away on

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05.08.1999, and his wife Girijawwa had predeceased him in the

year 1988. Both of them died leaving behind the plaintiff and

defendant No. 1, who are their legal representatives, to succeed

to their estate. In the plaint, the plaintiff specifically states that

the suit schedule properties are joint family properties and that

there was no partition inter se between the plaintiff, defendant

No.1, and their parents during their lifetime. As against this

specific plea of the plaintiff, the defendant No.1 specifically

contended that, in the year 1985, there was an earlier/prior

partition during the lifetime of Shivayogayya, in which, the

property bearing CTS No.182/D was allotted to the share of the

plaintiff, who accordingly relinquished her claim over the

remaining suit schedule properties and the same was recorded

subsequently in writing by way of a memorandum of surrender in

the year 2000. While considering this contention, the Trial Court

took note of the fact that the defendants have not placed any

legal or acceptable material to prove the factum of earlier/prior

oral partition setup by them. The Trial Court also noticed the fact

that the alleged memorandum of surrender had not been

produced by the defendants No.1 in order to prove the said

earlier oral partition setup by them, which reads as follows:

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12.

31. Recasted issue No.1 and Issue No.2 and reCasted issue No.6: These three issues are taken together for discussion to avoid repetition of facts, law and evidence.

Plaintiff has filed the suit for partition of her ½ share in schedule 'B' property and to declare five sale deeds executed in favour of defendant No.4 to 9 are not binding on her share. The burden is upon the plaintiff to prove that the suit properties are joint family properties and being a daughter of Sri.Shivayogayya, she is entitled to ½ share in schedule 'B' properties. Relationship is not disputed by the defendants.

32. In order to prove the case of the plaintiff, her husband came to be examined as PW.1 as her power of attorney holder and reiterated the entire plaint averments.

33. During his cross-examination, it is clearly suggested that suit properties have flown from the grandfather of plaintiff by name Sri.Andanayya and after his death the suit properties were inherited by father of plaintiff by name Sri.Shivayogayya but he pleaded ignorance that he does not know about the partition that took place amongst them. He has clearly admitted that a house property bearing CTS No.182/D was standing in name of Smt.Andanavva Hiremath,

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who was the sister-in-law of the said Sri.Shivayogayya.

34. PW.1 has denied the suggestion that partition took place in the year 1985 during the lifetime of father of the plaintiff and he also deposed that compensation amount with respect to property bearing CTS No.182/D was withdrawn by the plaintiff. He has also deposed that half of the compensation amount with respect to item No.2 was withdrawn by defendant No.1 to 3.

35. He has also admitted that item No.2 along with property bearing CTS No.182/C and 182/D were already submerged for Upper Krishna Project. But he has also admitted that property bearing CTS No.182/D originally belonged to Sri.Shivayogayya i.e., the father of plaintiff.

36. PW.1 has again filed his further chief affidavit, wherein, it is stated that property bearing CTS No.182/D does not belong to the plaintiff and defendant No.1 but it was given in lieu of maintenance to Smt. Andanavva and after her death she has executed a relinquishment deed in favour of this plaintiff out of love and affection. But the said relinquishment deed is not produced by the plaintiff.

37. During the further cross-examination, PW.1 has been cross-examined with respect to the reason why the plaintiff has not appeared before

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the court and for this the plaintiff has produced the power of attorney at Ex.P1 and the medical documents of plaintiff as per Ex.P46.

38. Be that as it may be, PW.1 has deposed that since the property bearing CTS No.182/D is submerged, the authority has granted a plot No.2 in the name of plaintiff in Navanagar and after submersion of property bearing CTS No.182/C, plot No.2 in Sector-20 and another plot also in Sector-20 was granted in the name of present defendant No.1 and in the name of Sri.Shivayogayya and he has clearly admitted that after the death of Sri.Shivayogayya both the plaintiff and defendant No.1 have inherited the said plots. He also denied the suggestion that as per the family arrangement, after receiving the gold ornaments and cash, plaintiff has relinquished her right in the suit property and this suggestion is contrary to the earlier contention taken in the written statement filed by the defendants that as per the oral partition which took place during the year 1985, property bearing CTS No.182/D has fallen to the share of this plaintiff.

39. PW.1 further deposed that he married the plaintiff during the year 1982 and also that the plaintiff was not born as on the year 1951.

40. Coming to the documentary evidence relied

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upon by the plaintiff to prove these issues, Ex.P.1 is the power of attorney executed by the plaintiff in favour of her husband i.e., PW.1. Learned counsel for the defendant No.4 and 5 has argued that the plaintiff executed power of attorney in the premises of court but she failed to step into the witness box. He has also relied upon 2019(1) KCCR 368, wherein, it is held that, "P.A. holder can depose only with respect to those facts which are within his knowledge." It is also argued that as per PW.1 he married the plaintiff during the year 1982 and the documents relied upon by the plaintiff do belong to the period of 1982, so, PW.1 is not competent to depose regarding the circumstances, which took place before 1982.

41. Admittedly, this PW.1 is the husband of the plaintiff and plaintiff has also relied upon medical documents at Ex.P.46, which shows that plaintiff is Diabetic and she is not in a position to attend the court regularly. As per law, both husband and wife considered as a single person and hence, by reposing confidence on her husband, the plaintiff has executed the power of attorney in favour of her husband and he has deposed as per the information furnished by the plaintiff.

42. The counsel for the plaintiff has relied upon AIR 2006 Kar 231. In that case it is held that, "merely on ground that parties to the suit do not appear as witness, evidence of power of attorney

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holder cannot be ignored." Moreover, this court has already allowed the I.A. by permitting PW.1 to represent the plaintiff as her power of attorney holder. PW.1 has clearly admitted that earlier suit properties were standing in the name of Sri.Andanayya and after his demise they devolved upon Sri.Shivayogayya, who was the father of this plaintiff and after his death being his children, plaintiff and defendant No.1 have inherited the suit properties.

43. Ex.P.2 is M.R.No.1723, which speaks of purchase of item No.1 by the grandfather of plaintiff on 22.05.1950. This Ex.P.2 is equivalent to Ex.P.27. So, as per this document it is as clear as day that, the grandfather of plaintiff has purchased item No.1 and as per Ex.P.3 i.e., M.R.No.3154, after the death of Sri.Andanayya the item No.1 inherited by his only son Sri.Shivayogayya i.e., father of the plaintiff and defendant No.1. To show that only plaintiff and defendant No.1 are the surviving legal-heirs of Sri.Shivayogayya, plaintiff has relied upon Ex.P.4 i.e., document showing surviving members.

44. In continuance of this document if we peruse Ex.P.5 equivalent to Ex.P.31, which shows that after the death of Sri.Shivayogayya on 05.08.1999, the present plaintiff and defendant No.1 inherited the item No.1 as the only living heirs. Ex.P.6 to 10 are the RTC extracts which

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shows that with respect to item No.1 after deleting name of Sri.Shivayogayya, it came to be entered in the joint names of plaintiff and defendant No.1. Ex.P.6 is equivalent to Ex.P.32. As per Ex.P.7 item No.1 is standing in the joint names of plaintiff and defendant No.1 as pavati varsa, but as per Ex.P.8 to 10 item No.1 is standing in the name of defendant No.6 to an extent of 1 acre 8 guntas and in the name of defendant No.4 to an extent of 3 acres as purchasers followed by mutation entries. These revenue documents also speaks regarding alleged relinquishment deed.

45. Another two important documents are Ex.P.15 and 16 and Ex.P.15 is equivalent to Ex.P.35, which shows clearly that Sri.Andanayya has purchased item No.2 and after his death Sri.Shivayogayya has inherited item No.2. It further shows that on 01.01.2001 it is noted that as agreed by the daughter her name came to be deleted and only the name of this present defendant No.1 is entered with respect to item No.2 after the death of Sri.Shivayogayya on 05.08.1999. It pre-supposes the fact that both plaintiff and defendant No.1 have jointly inherited item No.2 after the death of their father as class-I legal-heirs but during the year 2001 the name of this plaintiff came to be deleted. To show that she has relinquished her right over item No.2,

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defendants have not produced any documents.

46. Further in the same document i.e., Ex.P.15 dated 28.09.2006 it is shown that as per the family arrangement this present defendant No.1 has relinquished his right and possession over item No.2 in favour of his wife Smt. Annapurna and in pursuance of getting ownership as per the said revenue document, she in-turn has sold house measuring 10X8ft towards North in favour of defendant No.7. The document further shows that on 14.07.2011 after death of Smt.Annapurna on 21.04.2009 again the name of defendant No.1 to 3 came to be entered as legal-heirs with respect to remaining property. So, it is clear that after deleting the name of plaintiff, this defendant No.1 has given up his right over item No.2 in favour of his wife and she in- turn has sold part of the said property in favour of defendant No.7. On going through this Ex.P.15 it clearly shows that after the death of Sri.Shivayogayya, plaintiff and defendant No.1 have inherited item No.2 as their separate property.

47. Hence, it is transparent that the said house property bearing CTS No.182/B is the self acquired property of Sri.Andanayya and after his death it came to be inheriting by Sri.Shivayogayya as his only legalheir and after his death the said property came to be entered in

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the joint names of plaintiff and defendant No.1. When a Hindu inherits the property from his father under Sec.8, he takes it as his separate property and notas joint family property vis a vis his children - AIR 1986 SC 1752.

48. Regarding CTS No.182/C, plaintiff has relied upon Ex.P.16, which shows that the grandfather of plaintiff has purchased the said property on 13.02.1946 and after his death Sri.Shivayogayya has inherited the said property. But on 11.01.2001 it is shown that the name of this defendant No.1 is shows as varsa to Sri.Shivayogayya as per Vardi. I have already discussed regarding this point while discussing Ex.P.15. Since property bearing CTS No.182/C is the self acquired property of grandfather of the plaintiff, her father Sri.Shivayogayya has inherited the said property as his separate property and since he died intestate, both the plaintiff and defendant No.1 have inherited the said property as their separate properties.

49. Coming to another disputed property i.e., CTS No.182/D, which according to the plaint has given to the share of plaintiff in lieu of oral partition. On going through Ex.P.19 i.e., the ruled card with respect to CTS No.182/D, it shows that the said property was purchased by Sri.Andanayya and after his death his only son i.e., Sri.Shivayogayya has inherited the said

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property as his separate property. Afterwards, on 16.08.1951 Sri.Shivayogayya i.e., the father of the plaintiff has transferred the said property in the name of in his sister-in-law Smt.Andanavva in lieu of maintenance and after her death it came to be entered in the name of the plaintiff.

50. Learned counsel for the defendants have argued that this property bearing CTS No.182/D is also the joint family property of plaintiff and defendant No.1 and this property is not included in this suit. As per PW.1 he has agreed that the said CTS No.182/D is now submerged and the Government has allotted plot No.C-2 in Sector No.20 in favour of the plaintiff. PW.1 has relied upon Ex.P.28 i.e., the document executed regarding handing over of properties in lieu of maintenance to Smt. Andanevva along with Ex.P.29 and 30 i.e., M.R.No.3231 and 3154, which shows that Sri.Shivayogayya has transferred this property bearing CTS No.182/D in favour of Smt.Andanevva. It is also argued that as per Sec.14 of Hindu Succession Act, she became the absolute owner of the property and as such she has transferred the said property in the name of the present plaintiff.

51. Now, the validity of transfer made by Smt.Andanevva as an absolute owner is to be considered. The learned counsel for the defendant No.4 and 5 have supplied computerized copy of

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Ex.P.28 to 30, since those documents are hard to read. On going through Ex.P.28, it is recited that the said Smt.Andanevva was the sister-in-law of Sri. Shivayogayya but as per the documents discussed so far, only defendant No.1 and plaintiff are the children of Sri.Shivayogayya. As per the contents of this Ex.P.28 only possession of

acres of land in CTS No.120/2 towards North was handed over by Sri.Shivayogayya in favour of Smt.Andanevva. It is further recited that after the death of Smt.Andanevva again those property will revert back to Sri.Shivayogayya and Smt.Andanevva was permitted only to enjoy the said property till her death and she does not have any right to part with those properties.

52. As per the content of Ex.P.28, the brother-in- law(Sri.Shivayogayya) has handed over the possession of property bearing CTS No.182/D in favour of his sister-in-law with a condition that after her death the property will revert back to Sri.Shivayogayya. On going through Sec.14(2) of Hindu Succession Act "Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument of the decree, order or award "prescribe a restricted

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estate in such property."

53. As per the said provision if we consider Ex.P.28 the transfer made is restricted and only possession was handed over to Smt.Andanevva to enjoy the said property till her death. Moreover, nothing is stated in the plaint regarding the husband of Smt.Andanevva, who alleged to be the brother of Sri.Shivayogayya.

54. Even if for a moment, we consider that since the property was given to the widow in lieu of her maintenance and it becomes her absolute property and she has the right to transfer the ownership in favour of the present plaintiff it should only through a registered document as per Transfer Property Act. Moreover, as per Ex.P.29 i.e., M.R.No.3231 land measuring 2 acres which was given by Sri.Shivayogayya in favour Smt. Andanevva in lieu of maintenance came to be cancelled. Another important point to be noted here that property bearing CTS No.182/D was not given by the husband of Smt.Andanevva. As such there is no pre-existing right of Smt. Andanevva over the said property. Moreover, though it is contended by the plaintiff that Sri.Shivayogayya has transferred the said property in favour of plaintiff through a registered deed, no documents is produced by the plaintiff to evidence the transfer of property bearing CTS No.182/D in favour of plaintiff.

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55. The learned counsel for the defendants No.4 and 5 has relied upon 2020(1) Supreme Court Cases (Civ) 358. Wherein, it is held that, "merely being in possession during lifetime of husband would not make the wife absolute owner under Sec.14(1) of Hindu Act and absolute ownership cannot be claimed on the basis of mutation of property where there is a limited estate transfer."

56. In the present case also Sri.Shivayogayya has transferred limited ownership in favour of his sister-in- law Smt.Andanevva in lieu of maintenance and hence, Sec.14(1) of Hindu Succession Act will not apply.

57. While arguing on merits learned counsel for the plaintiff has submitted that he does not have any objections to consider the property bearing CTS No.182/D as the joint family property and even he does not have any objection to allot half share to defendant No.1.

58. As per Ex.P.19 it is clear that Sri.Shivayogayya has inherited property bearing CTS No.182/D as his separate property and he executed Ex.P.28 only to a limited estate in favour of Smt.Andanevva and in the absence of any registered deed executed by Smt.Andanevva in favour of present plaintiff, it cannot be considered that the plaintiff is the owner of

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property bearing CTS No.182/D. As such the said property revert back to Sri.Shivayogayya and ultimately, both the plaintiff and defendant No.1 will inherit the said property equally. Another important document to show that both the plaintiff and defendant No.1 will inherit property bearing CTS No.182/D is Ex.P.20 i.e., application filed by the present defendant No.1 to the Tahasildar, Bagalkote, to enter the names of both defendant No.1 and the plaintiff as "varsa" to the deceased Sri.Shivayogayya. Now, since it is an admitted fact that property bearing CTS No.182/D is submerged and the authority has granted another rehabilitation plot in favour of the plaintiff, as discussed by me supra, both the plaintiff and defendant No.1 are entitled to ½ share each in the said property. Simply, because the said property is not included, the suit filed seeking the relief of partition cannot be dismissed as it can be worked out in Final Decree Proceedings.

59. In order to prove the prior partition during the year 1985 and also that in the said partition CTS No. 182/D was given to the share of present plaintiff. Defendant No.1 came to be examined as DW.1 and during his cross-examination he has categorically admitted regarding the purchase of suit properties by the grandfather of plaintiff and this defendant No.1 and this defendant No.1 has

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not produced any documents with speaks regarding the family arrangements and relinquishment deed alleged to be executed by the plaintiff. It is also admitted that his father has died intestate and being his only children himself and plaintiff will inherit the suit properties. This defendant No.1 is the best witness to depose regarding how the properties flown from their grandfather and from his father. So, he has not at all disputed that suit properties are inherited by both the plaintiff and defendant No.1 and they are the class-I legal-heirs of Sri.Shivayogayya. DW.1 has also unambiguously admitted that the suit properties are the separate properties of their father Sri.Shivayogayya. He has clearly admitted that after the death of his father himself and plaintiff have not entered into partition. So, his cross-examination supports the plaint averments to show that both himself and plaintiff have inherited the suit properties after the death of their father Sri.Shivayogayya. In order to show the prior partition as said by me earlier defendant No.1 has not placed any document on record and he has clearly admitted that his father has inherited the suit properties from his grandfather.

60. Coming to the legal aspects as per the discussion made by me, it is clear that the suit properties are the separate properties of

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Sri.Shivayogayya as per Sec.8 and same is inherited by both the plaintiff and defendant No.1 by inheritance and succession open only after the death of Sri.Shivayogayya. So, it is clear that both the plaintiff and defendant No.1 have got ½ share each in the suit properties as per Sec.8 of Hindu Succession Act. This plaintiff has challenged the sale deeds executed by the defendant No.1 and his wife in favour of defendant No.4 to 9. Since the plaintiff has inherited the suit properties under Sec.8 it becomes her separate property. As such question of "Kartha" and "legal necessity"

will not arise. As laid down in 2016(5) KCCR 1273 (DB) it is observed that, "separate property of father devolves on his heirs in his individual capacity and not as co-parcenary property."

61. As in the case on hand, after the death of Sri.Shivayogayya being the Class-I heirs both the plaintiff and defendant No.1 will inherit the suit property equally.

62. As per the written statement filed by the defendants it is stated that plaintiff has no legal right to get benefit under the provisions of Amended Hindu Succession Act 2005. As already discussed by me plaintiff is claiming her ½ share not as a co-parcener. On the other hand, defendant No.1 failed to prove the prior partition and relinquishment of plaintiff's right over the suit property.

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63. Counsel for the defendant No.4 and 5 has relied upon 2021(1) SCC Civil 119, wherein, it was held that, "daughter born before date of enforcement of the 2005 Amendment has same right as daughter born on or after the amendment." But as said by me earlier, the property in question is not co-parcenary property and the plaintiff is not claiming her co-parcenary right. He has also relied upon LAWS(SC) 2019/7/5, wherein, it is held that, "the son of the deceased has inherited the co- parcenary property prior 1956 and it was partitioned between three sons vide partition deed dated 04.11.1964." The facts of this case are entirely different from the present case. Accordingly, it is clear that plaintiff has got ½ share in the suit properties under Sec.8 of Hindu Succession Act since the defendant failed to prove the "prior partition". Hence, I answer Re-casted Issue No.1 in the "Affirmative" Issue No.2 in the "Affirmative" and Re-casted Issue No.6 in the "Negative" and Re-casted Additional Issue No.1 dated 13.03.2018 in the "Negative"."

12. The Trial Court has taken into account that the khata

of property bearing CTS No.182/D was made out in the name of

the plaintiff, and that she received compensation in respect of

the said property upon its acquisition. The Trial Court correctly

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concluded that, notwithstanding the acquisition and

compensation, the plea of an earlier/prior partition set up by the

defendants had not been established as required under law. The

Trial Court also notices the fact that the plaintiff, being a

daughter, the plea of earlier partition would necessarily have to

be established by producing cogent and valid evidence, as the

standard of proof in this regard is very high, as held by the

Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh

Sharma and Other1, wherein it is held as under:

A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of

(2019) 9 Supreme Court Cases 1

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portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered

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document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

(emphasis supplied)

13. Even before us, although an attempt is made to point

out certain admissions in the cross examination of PW.1

(husband/Power of Attorney holder of the plaintiff) to contend

that the property bearing CTS No.182/D was mutated in the

name of the plaintiff, and that she received compensation, the

argument does not hold merit. The mere fact that the father

transferred the khata into the name of the plaintiff during his

lifetime, and that she received compensation and an alternative

site, cannot by itself, establish the plea of an earlier or prior

partition. In the absence of necessary details, material

particulars, details of other properties, details of persons to

whom the other properties were allotted, etc., the change of

khata and receipt of compensation and an alternative site

simpliciter cannot be relied upon by the defendants to prove the

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plea of earlier/prior partition. The said plea remains

uncorroborated by any other legal or acceptable evidence.

14. The Trial Court has also considered the contention of

the defendants that the plaintiff did not step into the witness

box, and that her husband, who is her Power of Attorney Holder,

was examined as PW.1. It held that, in the factual circumstances

of the present case, no adverse inference could be drawn against

the plaintiff, particularly when Section 120 of the Indian Evidence

Act, 18722, permits either spouse to depose or give evidence on

behalf of the others spouse. It is therefore clear that the Trial

Court has considered and appreciated the entire material on

record, as well as the contentions urged by the defendants, and

recorded a finding of fact that there was no prior/earlier

partition, as pleaded by the defendants. Accordingly, it accepted

the claim of the plaintiff by answering the said issues in her

favour.

15. Upon re-appreciation, re-consideration and re-

evaluation of the entire material on record, we are of the

considered opinion that the impugned judgment and decree

Hereinafter referred to as the 'Evidence Act'

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decreeing the suit of the plaintiff in respect of Item Nos.1 and 2

of the suit schedule properties cannot be said to be capricious or

perverse, nor can the same be said to contain any illegality or

infirmity warranting interference by this Court in the present

petition. Accordingly, the Point No.(i) is answered in favour of

the plaintiff and against defendant No.1 and the appeal in RFA

No.100132/2022 deserves to be dismissed.

Regarding Point No.(ii):

16. As stated supra, while decreeing the suit in respect of

Item Nos.1 and 2, the Trial Court dismissed the suit in respect of

Item Nos.3 and 4 of the suit schedule properties and decreed the

counter claim of defendant Nos.8 and 9 in respect of Item Nos.3

and 4 on the ground that the defendants Nos.8 and 9 are

bonafide purchasers without notice of the claim/share of the pre-

existing right/share of the plaintiff and accordingly, the plaintiff

is before this Court by way of RFA Nos.100282/2022 and

100251/2022.

17. While dealing with Point No.(i), we have already

come to the conclusion that the defendants have failed to

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establish/prove the plea of earlier/prior partition put forth by

them in relation to all 4 items of schedule properties; it follows

therefrom that Item Nos.3 and 4 of the suit schedule properties

would also have to be held as joint family properties, in which,

the plaintiff and defendant No.1 would be entitled to 1/4th share

each in all 4 items of the suit schedule properties. However, the

primary ground, on which, the Trial Court dismissed the suit of

the plaintiffs in respect of Item Nos.3 and 4 and decreed the

counter claim of defendant Nos. 8 and 9 in respect of these two

properties is by holding that the defendants No.8 and 9 are

bonafide purchasers for value without notice of the pre-

existing/right/claim of the plaintiff over the suit schedule

properties.

18. In this context, it is pertinent to state that it is trite

law, that a suit for partition merely declares the shares of parties

and all other rival contentions as regards to possession and

adjustment of equities, etc., would necessarily have to be

worked out during the final decree proceedings and any finding

on the same would neither be relevant nor germane to the

adjudication of the rights/shares of the parties under the

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preliminary decree. While dismissing the suit of the plaintiff and

allowing the counter claim of defendants Nos.8 and 9, the Trial

Court has clearly fallen in error in answering Issue Nos.3 to 5

against the plaintiff on the ground that the defendants No.8 and

9 were bonafide purchasers, which will not impact or which is

clearly erroneous in as much as the nature of the said contention

urged by the defendants No.8 and 9 that they are bona fide

purchasers, would not have the effect of taking away the

undivided half share of the plaintiff in Item Nos.3 and 4 of the

suit schedule properties and all other contentions including

construction, possession and adjustment of equities, etc., would

necessarily have to be worked out during the final decree

proceedings. In other words, merely because the defendants

No.8 and 9 contend that they were not aware that the right of

the plaintiff in respect of Item Nos.3 and 4 of the suit schedule

properties, the said circumstance by itself would not have the

effect of depriving the plaintiff of their legitimate half share in

Item Nos.3 and 4 of the suit schedule properties, particularly,

when the Trial Court as well as this Court have negatived the

plea of earlier/prior partition set up by the defendants.

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19. Under these circumstances, we are of the view that

the impugned judgment and decree dismissing the suit of the

plaintiff in relation to Item Nos.3 and 4 of the suit schedule

properties and decreeing the counter claim in favour of

defendants No.8 and 9 deserves to be set aside and the suit of

the plaintiff in relation to Item Nos.3 and 4 of the suit schedule

properties deserves to be decreed in their favour and the counter

claim deserves to be disposed of by issuing certain directions to

the parties to work out the remedies during the course of final

decree proceedings.

Regarding Point No.(iii):

20. As stated supra, while dealing with Point No.(i), we

have confirmed/upheld the judgment and decree of the Trial

court, decreeing the suit for partition and separate possession in

relation to Item Nos.1 and 2 of the suit schedule properties.

Similarly while dealing with Point No.(ii), we have set aside the

impugned judgment and decree of the Trial Court dismissing the

suit of the plaintiff in respect of Item Nos.3 and 4 and the

impugned judgment and decree passed by the Trial Court

allowing the counter claim of defendant No.8 and 9, and

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consequently, held that the plaintiff is entitled to half share in all

4 items of suit schedule properties and accordingly, disposed of

the counter claim. Point No.(iii) is also answered accordingly.

21. Hence the following:

ORDER

i) RFA No.100282/2022 and RFA No.100251/2022

are allowed;

ii) RFA No.100132/2022 is dismissed;

iii) The judgment and decree dated 14.12.2021

passed in O.S.No.58/2012 by the I Additional

Senior Civil Judge and JMFC, Bagalkote, insofar as

it relates to decreeing the suit of the plaintiff in

respect of Item Nos.1 and 2 of the suit schedule

properties is hereby confirmed;

iv) The judgment and decree dated 14.12.2021

passed in O.S.No.58/2012 by the I Additional

Senior Civil Judge and JMFC, Bagalkote, insofar as

it relates to dismissing the suit of the plaintiff in