Full Judgment
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1974 OF 2013 (PAR) BETWEEN: GANGEGOWDA S/O KAMBEGOWDA AGED ABOUT 74 YEARS KOTE MARAMMANAGUDI BEEDI CHANNARAYAPATNA HASSAN DISTRICT - 573 201. …APPELLANT (BY SRI. S.V. PRAKASH, ADVOCATE) AND:
Digitally signed 1. MAHALINGAPPA by KIRAN S/O LATE KAMBEGOWDA KUMAR R AGED ABOUT 57 YEARS Location: HIGH CHIKKURU GRAMACOURT OF KARNATAKA KASABA HOBLI ARASIKERE TALUK - 573 103
2. HALAPPA S/O LATE KAMBEGOWDA AGED ABOUT 52 YEARS CHIKKURU GRAMA KASABA HOBLI ARASIKERE TALUK - 573 103 -2-
3. GANGAMMA W/O PATTANAGEREGOWDA SINCE DEAD REP. BY R5(A)
4. SHANTHAMMA
W/O CHANDREGOWDA SINCE DEAD REP. BY LEGAL REPRESENTATIVE 4(A) RAJAMMA W/O HALAPPA D/O SHANTHAMMA AGED ABOUT 45 YEARS CHIKKURU (P) ARASIKERE (T) HASSAN DISTRICT - 573 103
5. LALITHAMMA W/O PUTTAVEEREGOWDA SINCE DEAD REP. BY LEGAL REPRESENTATIVE 5(A) CHANDRASHEKARA S/O PUTTAVEEREGOWDA AGED ABOUT 40 YEARS R/O BANNERGHATTA VILLAGE SHANTHIGRAMA HOBLI HASSAN (T) HASSAN DISTRICT - 573220
6. JAYALAKSHMI W/O SHANKARAPPA AGED ABOUT 55 YEARS CHIKKURU GRAMA KASABA HOBLI ARASIKERE TALUK - 573 103
7. SUSHEELA W/O RANGASWAMY AGED ABOUT 47 YEARS JAKKANAHALLI GRAMA -3- HEGGATTA POST, ARASIKERE TALUK - 573 103
8. KUMARASWAMY S/O NARASEGOWDA SINCE DEAD REP. BY R9 & R11
9. ESHWARAPPA S/O LATE NARASEGOWDA AGED ABOUT 92 YEARS CHIKKURU GRAMA KASABA HOBLI ARASIKERE TALUK - 573 103
10. SIDDAMMA W/O LATE NARASEGOWDA SINCE DEAD REP. BY R11
11. ASHOKA S/O LATE NARASEGOWDA AGED ABOUT 39 EYARS CHIKKURU GRAMA KASABA HOBLI ARASIKERE TALUK -573 101 …RESPONDENTS
[BY SRI. RAMAPRASAD S N, ADVOCATE FOR C/R2 AND ALSO FOR LRS OF R4(A), R5(A) R1, R4, R5, R6, R7 ARE SERVED V/O DATED 17.01.2020 APPEAL AGAINST R3 & R8 ARE ABATED V/O DATED 17.01.2020 NOTICE TO R9 TO R11 IS H/S V/O DATED 28.08.2025 R11 IS TREATED AS LEGAL REPRESENTATIVES OF DECEASED R10 R9 & R11 ARE TREATED AS LEGAL REPRESENTATIVES OF DECEASED R8 R5(A) IS TREATED AS LEGAL REPRESENTATIVE OF DECEASED R3]
-4- THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 17.7.2013 PASSED IN
R.A.NO.243/2009 ON THE FILE OF THE PRL. DISTRICT JUDGE, HASSAN, PARTLY ALLOWING THE APPEAL FILED AGAINST THE
JUDGEMENT AND DECREE DTD 25.7.2009 PASSED IN
OS.NO.32/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & ADDL. CJM, ARSIKERE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This appeal is filed by the appellant challenging the
judgment and decree dated 17.07.2013 passed in RA No.
243 of 2009 by the Court of the learned Principal District Judge at Hassan (‘First Appellate Court’ for short).
2. For the sake of convenience, the parties are
referred to based on their ranking before the Trial Court1. The appellant was defendant No.5, respondent Nos.1 to 7 were the plaintiffs, and other respondents were the defendants. OS No.32/2006 before the Court of the learned Civil Judge (Sr. Dn.) and Addl. CJM at Arsikere -5-
3. Brief facts leading rise to the filing of this appeal are as follows: 3.1. The plaintiffs filed a suit for partition and
separate possession alleging that suit ‘A’ and ‘B’ schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. The plaintiffs and the defendants are the members of a Hindu undivided family, and no partition is effected between the parties to the suit. The plaintiff requested the defendants to effect a partition, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file the suit for partition and separate possession.
3.2. The defendants filed a written statement denying the averments made in the plaint and it is contended that, the suit schedule properties are not the joint family properties and they are not acquired out of joint family nucleus. It is also contended that, the suit is for partial partition and is not maintainable. Hence, prays to dismiss the suit. -6- 3.3. Based on the pleadings of the parties, the Trial Court has clubbed OS Nos. 32 of 2006 and 59 of 2006, and framed separate issues.
“Issues in OS.No.32/2006 :- i. Whether the plaintiffs prove that the suit properties are the joint family properties of plaintiffs and defendants? ii. Whether the plaintiffs prove that the plaintiffs have iii. Whether the defendant Nos.5 and 6 prove that other than 1st item of "A" schedule property other properties are separate properties of defendants as claimed in the written statement? iv. What order or decree?”
3.4. The plaintiffs in OS No. 32 of 2006 examined 4 witnesses as PW1 to PW4 and marked 21 documents as Exs.P1 to P21. In rebuttal, defendant Nos.5 and 6 in OS No. 32 of 2006 have examined 5 witnesses as DW1 to DW5 and marked 48 documents as Exs.D1 to D48. -7- 3.5. After recording the evidence, hearing both sides
and assessing the verbal and documentary evidence, the Trial Court answered Issue No.1 as Item No.1 in ‘A’ schedule properties is the only joint family property of the plaintiffs and the defendants; Issue No.2 as the plaintiffs are entitled to get their ⅓rd share in Item No.1 of ‘A’ schedule properties only; Issue No.3 as Item No.2 in ‘A’ schedule and ‘B’ schedule properties belong to defendant Nos.5 and 6, and consequently decreed the suit in-part. It was declared that, Item No.1 of plaint ‘A’ schedule properties in OS No. 32 of 2006 and Item Nos.3 to 5 of plaint schedule properties in OS No. 59 of 2006 are the ancestral joint family properties of the plaintiffs and defendant Nos.1 to 5 in OS No. 32 of 2006. The said properties shall be partitioned between the plaintiffs and defendant Nos.1 to 5 in OS No. 32 of 2006 by meets and bounds. The plaintiffs in OS No. 32 of 2006 are entitled to get separate possession of their ⅓rd share together, and
defendant Nos.1 to 4 are entitled to get separate -8- possession of their ⅓rd share together and defendant No.5 is entitled to get separate possession of his ⅓rd share in the said properties. Insofar as suit in OS No. 59 of 2006 is concerned, the same was dismissed vide common
judgment dated 25.07.2009.
3.6. The plaintiffs, aggrieved by the common
judgment and decree dated 25.07.2009 passed by the
Trial Court in OS Nos. 32 of 2006 and 59 of 2006, preferred appeal in RA No. 243 of 2009 before the First Appellate Court. 3.7. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: “1. Whether the appellants prove, 'A' and 'B' schedule properties are the joint family properties and they are entitled for share in these items of property also?
2. Whether the impugned Judgment and Decree passed by the Court below is proper, correct and in -9- accordance with Law, which requires any interference from the hands of this Court?
3. What Order?” 3.8. The First Appellate Court, after re-appreciating
the entire evidence on record, allowed the appeal in-part vide judgment dated 17.07.2013 and dismissed the appeal in respect of ‘A’ schedule properties by confirming the
judgment and decree passed by the Trial Court in OS No.
32 of 2006. However, the appeal filed by the appellant in respect of ‘B’ schedule properties was allowed and it was
held that, ‘B’ schedule properties are the joint family
properties of the plaintiffs and other coparceners. Plaintiff Nos.1 and 2 and defendant No.5 are entitled ⅓rd share each in the ‘B’ schedule properties.
4. Defendant No.5, aggrieved by the judgment
and decree passed by the First Appellate Court, has filed this appeal. - 10 -
5. Heard the arguments of the learned counsel for defendant No.5 and learned counsel appearing for the plaintiffs.
6. Learned counsel for defendant No.5 submits
that, the First Appellate Court has allowed the appeal in- part and granted a share in ‘B’ schedule properties. He submits that, the First Appellate Court has not assigned any reasons while passing the impugned judgment. The impugned judgment passed by the First Appellate Court is without application of mind. He further submits that, the impugned judgment passed by the First Appellate Court is not in accordance with Order XLI Rule 31 of the Code of Civil Procedure (‘CPC’ for short). Hence, on these grounds, he prays to allow the appeal and set aside the impugned
judgment and decree passed by the First Appellate Court,
and remit the matter to the First Appellate Court with a direction to the First Appellate Court to pass a judgment in compliance with Order XLI Rule 31 of CPC. - 11 -
7. Per contra, learned counsel for the plaintiffs supported the impugned judgment and pray to dismiss the appeal.
8. Perused the records and considered the submissions of the learned counsel for the parties.
9. This Court admitted the appeal vide order dated 15.02.2022 to consider the following substantial question of law:
“Whether the first appellate court is justified in holding that Item No.2 of ‘B’ schedule property in OS No.32/2006 is the joint family property without assigning any reason whatsoever?” Reg. Substantial question of law:
10. It is undisputed fact that, the plaintiffs filed a
suit for partition and separate possession and the defendants have contested the said suit by filing a written statement. The Trial Court, after hearing the learned counsel for the parties, decreed the suit in OS No. 32 of 2006 in-part and granted a share to the parties in OS No. - 12 - 32 of 2006, and dismissed the suit in OS No. 59 of 2006. The plaintiffs in OS No. 32 of 2006 preferred an appeal in
RA No. 243 of 2009 challenging the common judgment
passed in OS Nos. 32 of 2006 and 59 of 2006. The First Appellate Court allowed the appeal in-part, dismissed the appeal in respect of ‘A’ schedule properties by confirming the judgment and decree passed by the Trial Court in OS No. 32 of 2006. However, the First Appellate Court allowed the appeal filed by the appellant in respect of ‘B’ schedule properties and held that, ‘B’ schedule properties are the
joint family properties of the plaintiffs and other coparceners; plaintiff Nos.1 and 2 and defendant No.5 are entitled for ⅓rd share each in the ‘B’ schedule properties.
11. I have perused the entire judgment passed by the First Appellate Court. From the perusal of the
judgment passed by the First Appellate Court, it appears
that, the First Appellate Court has not assigned any reasons for holding that the plaintiff Nos.1 and 2 and defendant No.5 are entitled for ⅓rd share each in the ‘B’ - 13 - schedule properties. The First Appellate Court, without assigning any reasons, has passed the impugned judgment. The impugned judgment passed by the First Appellate Court is in violation of Order XLI Rule 31 of CPC.
Hence, on this ground alone itself, the impugned judgment
is liable to be set aside. The First Appellate Court being the last fact finding Court, is required to re-appreciate the entire evidence and answer each issues framed by the Trial Court. The First Appellate Court must assign reasons. In the instant case, the First Appellate Court has not assigned reasons in the impugned judgment. The matter requires fresh consideration by the First Appellate Court.
12. In view of the above discussion, I answer the substantial question of law in the negative, and accordingly, I proceed to pass the following:
ORDER
i. The appeal is allowed; - 14 - ii. The impugned judgment and decree dated 17.07.2013 passed by the First Appellate Court in RA No. 243 of 2009 is hereby set aside; iii. The appeal in RA No. 243 of 2009 is restored to its original file; iv. The First Appellate Court is directed to pass the
judgment in compliance with Order XLI Rule 31
of CPC; iv. The parties are directed to appear before the First Appellate Court on 13.07.2026 without awaiting any further notice from the First Appellate Court; v. All the contentions of the parties are kept open; vi. The Registry is directed to transmit the Trial Court records to the First Appellate Court forthwith; vii. Pending IA(s) in this appeal, if any, do not survive for consideration and accordingly, shall stand disposed of.
Sd/- (ASHOK S.KINAGI) JUDGE PA List No.: 2 Sl No.: 23