Karnataka High Court
Sri. M. Rajashekharappa vs Smt. Eshwaramma on 10 July, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2026
R
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.285 OF 2010 (PAR)
C/W
REGULAR SECOND APPEAL NO.284 OF 2010 (PAR)
REGULAR SECOND APPEAL NO.286 OF 2010 (PAR)
IN RSA NO.285/2010:
BETWEEN:
1. SRI. M. RAJASHEKHARAPPA
S/O LATE MALLANNA
SINCE DEAD BY LRS.
1(a) SMT. PARVATHAMMA
W/O LATE RAJASHEKHARAPPA
AGED ABOUT 70 YEARS
1(b) RUSHABENDRAPPA
S/O LATE RAJASHEKHARAPPA
Digitally signed AGED ABOUT 57 YEARS
by DEVIKA M
Location: HIGH 1(c) R. MURALIDHARA
COURT OF S/O LATE RAJASHEKHARAPPA
KARNATAKA
AGED ABOUT 49 YEARS
APPELLANTS NO.1(a) TO 1(c) ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
2. BASAVARAJAPPA
S/O LATE MALLANNA
DEAD BY HIS LRS
-2-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
2(a) C.B. UMADEVI
D/O LATE BASAVARAJAPPA
W/O MANJUNATHA
AGED ABOUT 54 YEARS
R/O AMARAPURA,
MADAKSHIRA TALUK
SATHYASAI DISTRICT
ANDRAPRADESH-515281.
2(b) C.B. ANANDA KUMAR
S/O LATE BASAVARAJAPPA
AGED ABOUT 50 YEARS
R/O CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
2(c) C.B. VEENA
D/O LATE BASAVARAJAPPA
W/O THIPPESWAMY
AGED ABOUT 48 YEARS
R/O NAGARAMGERE VILLAGE
CHELLAKERE TALUK
CHITRADURGA DISTRICT-577522.
3. SRI. SADASHIVAPPA
S/O LATE MALLANNA
SINCE DEAD BY LRS.
3(a) SMT. DRAKSHAYANAMMA
W/O LATE SADASHIVAPPA
AGED ABOUT 50 YEARS
3(b) M.S.NAGARAJA
S/O LATE SADASHIVAPPA
AGED ABOUT 29 YEARS
3(c) SMT. GEETHAMMA
W/O MALLIKARJUN
AGED ABOUT 32 YEARS
APPELLANTS NO.3(a) TO 3(c) ARE
RESIDENTS OF CHIKKACHELLUR
-3-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
4. SRI MANJUNATH
S/O LATE MALLANNA
SINCE DEAD BY LRS.
4(a) SMT. LALITHAMMA
W/O LATE MANJUNATHA
AGED ABOUT 50 YEARS
4(b) C.M. MOHAN
S/O LATE MANJUNATHA
AGED ABOUT 41 YEARS
4(c) C.M. ARUN KUMAR
S/O LATE MANJUNATHA
AGED ABOUT 34 YEARS
APPELLANTS NO.4(a) TO 4(c) ARE
RESIDENTS OF
CHIKKACHELLUR VILLAGE
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
4(d) SMT. M. VATSALA
W/O THIPPESWAMY &
D/O LATE MANJUNATHA
AGED ABOUT 39 YEARS
RESIDENT OF NAGARANAGERE
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
5. JAYANNA
S/O LATE MALLANNA
AGED ABOUT 51 YEARS
PHG OFFICER
HOUSING BOARD COLONY
NEAR ST. JOSEPH CONVENT
CHITRADURGA.
-4-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
6. SRI ONAKRA MURTHY
S/O LATE MALLANNA
AGED ABOUT 48 YEARS
AGRICULTURIST, J.N.KOTE
CHITRADURGA TALUK
CHITRADURGA DISTRICT.
7. SRI MARIYAPPA
S/O LATE ESHWARAPPA
SINCE DEAD BY LRS
7(a) SMT. PARVATHAMMA
W/O LATE MARIYAPPA
AGED ABOUT 42 YEARS
7(b) KISHOR M.,
S/O LATE MARIYAPPA
AGED ABOUT 21 YEARS
7(c) ISHWAR M.,
S/O LATE MARIYAPPA
AGED ABOUT 19 YEARS
APPELLANTS NO.7(a) TO 7(c) ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
8. SRI THIPPESWAMY
S/O LATE ESHWARAPPA
AGED ABOUT 36 YEARS
AGRICULTURIST
9. SRI SATHISH BABU
S/O LATE ESHWARAPPA
AGED ABOUT 34 YEARS
AGRICULTURIST
APPELLANTS NO.8 AND 9 ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
-5-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
...APPELLANTS
(BY SRI. VIGHNESHWAR S. SHASTRI, SENIOR COUNSEL FOR
SRI. SAGAR V. SHASTRI, ADVOCATE)
AND:
1. SMT. ESHWARAMMA
W/O LATE RUDRAMUNIYAPPA
SINCE DEAD BY LRS.
1(a) SMT. SARVAMANGALAMMA
W/O C.M.BASAVARAJAPPA &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 63 YEARS
RESIDENT OF
CHIKKACHELLUR VILLAGE
PRASHURAMAPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
1(b) SHIVAKUMARA
S/O LATE RUDRAMUNIYAPPA
SINCE DEADY BY LRS.
1(b)(i) SMT. VIMALAKSHAMMA
W/O LATE G.R. SHIVAKUMARA
AGED ABOUT 60 YEARS
RESIDING AT
HORAKERI DEVARPURA
HOLALKERE TALUK
CHITRADURGA DISTRICT.
1(b)(ii) SMT. S. JYOTHI
D/O LATE G.R.SHIVAKUMARA
W/O B.R. RAJESH
AGED ABOUT 35 YEARS
RESIDING AT
DODDACHELLURU VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
-6-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
1(c) SMT. SOWBHAGYAMMA
W/O LATE RUDRAMUNI &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 60 YEARS
DODDACHELLURU VILLAGE
PARASHURAMAPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
1(d) SMT. NIRMALAMMA
W/O CHANDRANNA &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 59 YEARS
(RETIRED POSTAL DEPARTMENT EMPLOYEE)
RESIDING AT LAKSHMAMMA BADAVANE
HULIYARU ROAD, HIRIYURU TOWN
CHITRADURGA DISTRICT.
1(e) SMT. SHANTHAKUMARI
W/O NAGABHUSHAN &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 57 YEARS
NEAR MASJID,
BHARAMASAGARA VILLAGE (HOBLI)
CHITRADURGA DISTRICT
SMT. SHANTHAKUMARI
SINCE DECEASED ON 30.03.2023
BY HER LRS.
1(e)(i) K.M.NAGABHUSHAN
W/O LATE K.H.MAHALINGAPPA
AGED ABOUT 60 YEARS
1(e)(ii) B.N.PAVANKUMAR
S/O K.M. NAGABHUSHAN
AGED ABOUT 29 YEARS
1(e)(iii) B.N.JAYAPRAKASH
S/O K.M.NAGABHUSHAN
AGED ABOUT 26 YEARS
-7-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
ALL ARE RESIDING NEAR MASJID
BHARAMASAGARA VILLAGE
CHITRADURGA TALUK AND DISTRICT
1(f) SMT. JAYASHREE
W/O LATE NAGARAJU &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 55 YEARS
ANGANAWADI TEACHER.
1(g) SMT. CHANNABASAMMA
W/O C.M.OMKARAMURTHY &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 54 YEARS
ANGANAWADI TEACHER.
1(h) GURUBASAVESHWARA
S/O LATE RUDRAMUNIYAPPA
AGED ABOUT 51 YEARS
RESPONDENTS NO.1(f) TO 1(h) ARE
RESIDENTS OF J.N.KOTE,
KASABA HOBLI, CHITRADURGA TALUK
AND DISTRICT.
1(i) SHARANA BASAVESHWARA
S/O LATE RUDRAMUNIYAPPA
AGED ABOUT 51 YEARS
REVENUE DEPARTMENT EMPLOYEE
RESIDENT OF C.K.PURA,
KELAGOTE, NEAR RADIO STATION
CHITRADURGA TOWN.
2. MALLIKARJUNAPPA
S/O LATE PUTTALINGANNA
AGED ABOUT 54 YEARS
3. VISHWESHWARAIAH
S/O LATE PUTTALINGANNA
AGED ABOUT 50 YEARS
4. THIPPESWAMY
S/O LATE PUTTALINGANNA
AGED ABOUT 48 YEARS
-8-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
5. THIPPESWAMY
S/O LATE REVANNA
AGED ABOUT 48 YEARS
6. R. MAHANTESHWARAPPA
S/O LATE REVANNA
AGED ABOUT 39 YEARS
RESPONDENT NOS.2 TO 6
ALL ARE AGRICULTURIST
RESIDENTS OF
KADEHUDE VILLAGE
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
(AMENDED VIDE COURT ORDER DATED 25.03.2025)
...RESPONDENTS
(BY SRI D.R.RAJASHEKARAPPA, ADVOCATE FOR R1(a), R1(c),
R1(d), R1(e)(i) to R1(e)(iii), R1(f) to R1(i), R2 TO R4;
SRI GOPALAKRISHNAMURTHY C., ADVOCATE FOR R5 AND R6;
R1(b)(i) AND R1(b)(ii) - SERVED UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 07.10.2009
PASSED IN R.A.NO.77/2007 ON THE FILE THE ADDL. DISTRICT
AND SESSIONS JUDGE, CHITRADURGA, ALLOWING THE
APPEAL AND SETING ASIDE THE JUDGEMENT AND DECREE
DATED 16.08.2007 PASSED IN O.S.NO.372/2002 ON THE FILE
OF THE CIVIL JUDGE (SR.DN), CHALLAKERE.
IN RSA NO.284/2010:
BETWEEN:
1. SRI. M. RAJASHEKHARAPPA
S/O LATE MALLANNA
SINCE DEAD BY LRS.
1(a) SMT. PARVATHAMMA
W/O LATE RAJASHEKHARAPPA
AGED ABOUT 70 YEARS
-9-
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
1(b) RUSHABENDRAPPA
S/O LATE RAJASHEKHARAPPA
AGED ABOUT 57 YEARS
1(c) R. MURALIDHARA
S/O LATE RAJASHEKHARAPPA
AGED ABOUT 49 YEARS
APPELLANTS NO.1(a) TO 1(c) ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
2. BASAVARAJAPPA,
S/O LATE MALLANNA
DEAD BY HIS LRS
2(a) C.B. UMADEVI
D/O LATE BASAVARAJAPPA
W/O MANJUNATHA
AGED ABOUT 54 YEARS
R/O AMARAPURA,
MADAKSHIRA TALUK
SATHYASAI DISTRICT
ANDRAPRADESH-515281.
2(b) C.B. ANANDA KUMAR
S/O LATE BASAVARAJAPPA
AGED ABOUT 50 YEARS
R/O CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
2(c) C.B. VEENA
D/O LATE BASAVARAJAPPA
W/O THIPPESWAMY
AGED ABOUT 48 YEARS
R/O NAGARAMGERE VILLAGE
CHELLAKERE TALUK
CHITRADURGA DISTRICT-577522.
- 10 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
3. SRI. SADASHIVAPPA
S/O LATE MALLANNA
SINCE DEAD BY LRS.
3(a) SMT. DRAKSHAYANAMMA
W/O LATE SADASHIVAPPA
AGED ABOUT 50 YEARS
3(b) M.S.NAGARAJA
S/O LATE SADASHIVAPPA
AGED ABOUT 29 YEARS
3(c) SMT. GEETHAMMA
W/O MALLIKARJUN
AGED ABOUT 32 YEARS
APPELLANTS NO.3(a) TO 3(c) ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
4. SRI MANJUNATH
S/O LATE MALLANNA
SINCE DEAD BY LRS.
4(a) SMT. LALITHAMMA
W/O LATE MANJUNATHA
AGED ABOUT 50 YEARS
4(b) C.M. MOHAN
S/O LATE MANJUNATHA
AGED ABOUT 41 YEARS
4(c) C.M. ARUN KUMAR
S/O LATE MANJUNATHA
AGED ABOUT 34 YEARS
APPELLANTS NO.4(a) TO 4(c) ARE
RESIDENTS OF CHIKKACHELLUR VILLAGE
PARASHURAMPURA HOBLI, CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
- 11 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
4(d) SMT. M. VATSALA
W/O THIPPESWAMY &
D/O LATE MANJUNATHA
AGED ABOUT 39 YEARS
RESIDENT OF NAGARANAGERE
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
5. JAYANNA,
S/O LATE MALLANNA
AGED ABOUT 51 YEARS
PHG OFFICER, HOUSING BOARD COLONY
NEAR ST. JOSEPH CONVENT
CHITRADURGA.
6. SRI ONAKRA MURTHY
S/O LATE MALLANNA
AGED ABOUT 48 YEARS
AGRICULTURIST, J.N.KOTE
CHITRADURGA TALUK
CHITRADURGA DISTRICT.
7. SRI MARIYAPPA
S/O LATE ESHWARAPPA
SINCE DEAD BY LRS
7(a) SMT. PARVATHAMMA
W/O LATE MARIYAPPA
AGED ABOUT 42 YEARS
7(b) KISHOR M.,
S/O LATE MARIYAPPA
AGED ABOUT 21 YEARS
7(c) ISHWAR M.,
S/O LATE MARIYAPPA
AGED ABOUT 19 YEARS
APPELLANTS NO.7(a) TO 7(c) ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
- 12 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
8. SRI THIPPESWAMY
S/O LATE ESHWARAPPA
AGED ABOUT 36 YEARS
AGRICULTURIST
9. SRI SATHISH BABU
S/O LATE ESHWARAPPA
AGED ABOUT 34 YEARS
AGRICULTURIST
APPELLANTS NO.8 AND 9 ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
...APPELLANTS
(BY SRI VIGHNESHWAR S.SHASTRI, SENIOR COUNSEL FOR
SRI. SAGAR V. SHASTRI, ADVOCATE)
AND:
1. THIPPESWAMY
S/O LATE REVANNA
AGED ABOUT 48 YEARS
2. R. MAHANTESHWARAPPA
S/O LATE REVANNA
AGED ABOUT 39 YEARS
3. MALLIKARJUNAPPA
S/O LATE PUTTALINGANNA
AGED ABOUT 54 YEARS
4. VISHWESHWARAIAH
S/O LATE PUTTALINGANNA
AGED ABOUT 50 YEARS,
5. THIPPESWAMY
S/O PUTTALINGANNA
AGED ABOUT 48 YEARS
- 13 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
RESPONDENT NOS.1 TO 5
ALL ARE AGRICULTURISTS
RESIDENTS OF KADEHUDE VILLAGE
PARASHARAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
6. SMT. SARVAMANGALAMMA
W/O LATE BASAVARAJAPPA
AGED ABOUT 74 YEARS
R/O CHIKKACHELLUR VILLAGE
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
(AMENDED VIDE COURT ORDER DATED 25.03.2025 AND
10.07.2025)
...RESPONDENTS
(BY SRI. GOPALAKRISHNAMURTHY C., ADVOCATE
FOR R1 AND R2;
SRI. D.R.RAJASHEKARAPPA, ADVOCATE FOR R3 TO R5;
R6 - SERVED UNREPRESENTED )
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 07.10.2009
PASSED IN R.A.NO.43/2008 ON THE FILE OF THE ADDL.
DISTRICT AND SESSIONS JUDGE, CHITRADURGA, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 16.08.2007 PASSED IN O.S.NO.275/2002 ON THE FILE
OF THE CIVIL JUDGE (SR.DN.), CHALLAKERE.
IN RSA NO.286/2010:
BETWEEN:
1. SRI. M. RAJASHEKHARAPPA
S/O LATE MALLANNA,
SINCE DEAD BY LRS
1(a) SMT. PARVATHAMMA
W/O LATE RAJASHEKHARAPPA
AGED ABOUT 70 YEARS
- 14 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
1(b) RUSHABENDRAPPA
S/O LATE RAJASHEKHARAPPA
AGED ABOUT 57 YEARS
1(c) R. MURALIDHARA
S/O LATE RAJASHEKHARAPPA
AGED ABOUT 49 YEARS
APPELLANTS NO.1(a) TO 1(c) ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
2. BASAVARAJAPPA
S/O LATE MALLANNA
DEAD BY HIS LRS
2(a) C.B. UMADEVI
D/O LATE BASAVARAJAPPA
W/O MANJUNATHA
AGED ABOUT 54 YEARS
R/O AMARAPURA
MADAKSHIRA TALUK
SATHYASAI DISTRICT
ANDRAPRADESH-515281.
2(b) C.B. ANANDA KUMAR
S/O LATE BASAVARAJAPPA
AGED ABOUT 50 YEARS
R/O CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
2(c) C.B. VEENA
D/O LATE BASAVARAJAPPA
W/O THIPPESWAMY
AGED ABOUT 48 YEARS
R/O NAGARAMGERE VILLAGE
CHELLAKERE TALUK
CHITRADURGA DISTRICT-577522.
- 15 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
3. SADASHIVAPPA,
S/O LATE MALLANNA
SINCE DEAD BY LRS
3(a) SMT. DRAKSHAYANAMMA
W/O LATE SADASHIVAPPA
AGED ABOUT 50 YEARS
3(b) M.S.NAGARAJA
S/O LATE SADASHIVAPPA
AGED ABOUT 29 YEARS
3(c) SMT. GEETHAMMA
W/O MALLIKARJUN
AGED ABOUT 32 YEARS
APPELLANTS NO.3(a) TO 3(c) ARE
RESIDENTS OF CHIKKACHELLUR
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
4. MANJUNATH
S/O LATE MALLANNA
SINCE DEAD BY LRS
4(a) SMT. LALITHAMMA
W/O LATE MANJUNATHA
AGED ABOUT 50 YEARS
4(b) C.M. MOHAN
S/O LATE MANJUNATHA
AGED ABOUT 41 YEARS
4(c) C.M. ARUN KUMAR
S/O LATE MANJUNATHA
AGED ABOUT 34 YEARS
APPELLANTS NO.4(a) TO 4(c) ARE
RESIDENTS OF CHIKKACHELLUR VILLAGE
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
- 16 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
4(d) SMT. M. VATSALA
W/O THIPPESWAMY &
D/O LATE MANJUNATHA
AGED ABOUT 39 YEARS
RESIDENT OF NAGARANAGERE
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577522.
5. JAYANNA
S/O LATE MALLANNA
AGED ABOUT 51 YEARS
PHG OFFICER
HOUSING BOARD COLONY
NEAR ST. JOSEPH CONVENT
CHITRADURGA TOWN
CHITRADURGA DISTRICT.
6. ONKARA MURTHY
S/O LATE MALLANNA
AGED ABOUT 48 YEARS
AGRICULTURIST
J.N.KOTE
CHITRADURGA TALUK
CHITRADURGA DISTRICT.
7. MARIYAPA
S/O LATE ESHWARAPPA
SINCE DEAD BY LRS.
7(a) SMT. PARVATHAMMA
W/O LATE MARIYAPPA
AGED ABOUT 42 YEARS
7(b) KISHOR M.,
S/O LATE MARIYAPPA
AGED ABOUT 21 YEARS
7(c) ISHWARA M.,
S/O LATE MARIYAPPA
AGED ABOUT 19 YEARS
APPELLANTS NO.7(a) TO 7(c) ARE
RESIDENTS OF CHIKKACHELLUR
- 17 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
8. THIPPESWAMY
S/O LATE ESHWARAPPA
AGED ABOUT 36 YEARS
AGRICULTURIST.
9. SATHISH BABU
S/O LATE ESHWARAPPA
AGED ABOUT 34 YEARS
AGRICULTURIST
APPELLANTS NO.8 AND 9 ARE
RESIDENTS OF CHIKKACHELLUR VILLAGE
PARASHRAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
...APPELLANTS
(BY SRI. VIGHNESHWAR S. SHASTRI, SENIOR COUNSEL FOR
SRI. SAGAR V. SHASTRI, ADVOCATE)
AND:
1. MALLIKARJUNAPPA
S/O LATE PUTTALINGANNA
AGED ABOUT 54 YEARS
2. VISHWESHWARAIAH
S/O PUTTALINGANNA
AGED ABOUT 50 YEARS
3. THIPPESWAMY
S/O PUTTALINGANNA
AGED ABOUT 48 YEARS
4. THIPPESWAMY
S/O LATE REVANNA
AGED ABOUT 48 YEARS
AGRICULTURIST
- 18 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
5. R. MAHANTESHWARAPPA,
S/O LATE REVANNA
AGED ABOUT 39 YEARS
ALL ARE AGRICULTURISTS
RESIDENTS OF KADEHUDE VILLAGE
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
6. ESHWARAMMA
W/O LATE RUDRAMUNIYAPPA
SINCE DEAD BY LRS.
6(a) SMT. SARVAMANGALAMMA
W/O C.M.BASAVARAJAPPA &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 63 YEARS
RESIDENT OF CHIKKACHELLUR VILLAGE
PRASHURAMAPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
6(b) SHIVAKUMARA
S/O LATE RUDRAMUNIYAPPA
SINCE DEADY BY LRS.
6(b)(i) SMT. VIMALAKSHAMMA
W/O LATE G.R. SHIVAKUMARA
AGED ABOUT 60 YEARS
RESIDING AT HORAKERI DEVARPURA
HOLALKERE TALUK
CHITRADURGA DISTRICT.
6(b)(ii) SMT. S. JYOTHI
D/O LATE G.R.SHIVAKUMARA
W/O B.R. RAJESH
AGED ABOUT 35 YEARS
RESIDING AT
DODDACHELLURU VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
- 19 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
6(c) SMT. SOWBHAGYAMMA
W/O LATE RUDRAMUNI &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 60 YEARS
DODDACHELLURU VILLAGE
PARASHURAMAPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
6(d) SMT. NIRMALAMMA
W/O CHANDRANNA &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 59 YEARS
(RETIRED POSTAL DEPARTMENT EMPLOYEE)
RESIDING AT LAKSHMAMMA BADAVANE
HULIYARU ROAD, HIRIYURU TOWN
CHITRADURGA DISTRICT.
6(e) SMT. SHANTHAKUMARI
W/O NAGABHUSHAN &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 57 YEARS
NEAR MASJID,
BHARAMASAGARA VILLAGE (HOBLI)
CHITRADURGA DISTRICT
SMT. SHANTHAKUMARI
SINCE DECEASED ON 30.03.2023
BY HER LRS.
6(e)(i) K.M.NAGABHUSHAN
W/O LATE K.H.MAHALINGAPPA
AGED ABOUT 60 YEARS
6(e)(ii) B.N.PAVANKUMAR
S/O K.M. NAGABHUSHAN
AGED ABOUT 29 YEARS
6(e)(iii) B.N.JAYAPRAKASH
S/O K.M.NAGABHUSHAN
AGED ABOUT 26 YEARS
ALL ARE RESIDING NEAR MASJID
- 20 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
BHARAMASAGARA VILLAGE
CHITRADURGA DISTRICT TALUK AND DISTRICT
6(f) SMT. JAYASHREE
W/O LATE NAGARAJU &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 55 YEARS
ANGANAWADI TEACHER.
6(g) SMT. CHANNABASAMMA
W/O C.M.OMKARAMURTHY &
D/O LATE RUDRAMUNIYAPPA
AGED ABOUT 54 YEARS
ANGANAWADI TEACHER.
6(h) GURUBASAVESHWARA
S/O LATE RUDRAMUNIYAPPA
AGED ABOUT 51 YEARS
RESPONDENTS NO.6(f) TO 6(h) ARE
RESIDENTS OF J.N.KOTE,
KASABA HOBLI, CHITRADURGA TALUK
AND DISTRICT.
6(i) SHARANA BASAVESHWARA
S/O LATE RUDRAMUNIYAPPA
AGED ABOUT 51 YEARS
REVENUE DEPARTMENT EMPLOYEE
RESIDENT OF C.K.PURA,
KELAGOTE, NEAR RADIO STATION
CHITRADURGA TOWN.
(AMENDED VIDE COURT ORDER DATED 25.03.2025)
...RESPONDENTS
(BY SRI. D.R. RAJASHEKARAPPA, ADVOCATE FOR R1 TO R3
AND R6(a) to R6(i), R6(b)(i) AND R6(b)(ii)
AND ALSO FOR R6(e)(i) TO R6(e) (iii);
SRI. GOPALAKRISHNAMURTHY C., ADVOCATE FOR R4 AND R5)
THIS RSA IS FILED UNDER ORDER 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 07.10.2009 PASSED IN
R.A.NO.78/2007 ON THE FILE OF THE ADDL. DISTRICT AND
- 21 -
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
SESSIONS JUDGE, CHITRADURGA, ALLOWING THE APPEAL
SETTING ASIDE JUDGEMENT AND DECREE DATED 16.08.2007
PASSED IN O.S.NO.372/2002 ON THE FILE OF THE CIVIL
JUDGE (SR. DN.), CHALLAKERE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.06.2026 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard Sri Vighneshwar S. Shastri, learned Senior counsel
for Sri Sagar V. Shastri for appellants and Sri D.R.
Rajashekarappa and Sri Gopalakrishnamurthy C., learned
counsels for the respondents.
2. R.S.A.No.284/2010 is filed challenging the
judgment and decree passed in R.A.No.43/2008 dated
07.10.2009 passed by the learned Additional District and
Sessions Judge, Chitradurga and confirming the judgment and
decree passed in O.S.No.275/2002 dated 16.08.2007 passed
by the learned Civil Judge (Sr. Dn.), Challakere.
3. R.S.A.No.285/2010 is filed praying this Court to set
aside the judgment and decree passed in R.A.No.77/2007
dated 07.10.2009 passed by the learned Additional District and
Sessions Judge, Chitradurga and confirming the judgment and
– 22 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
decree passed in O.S.No.372/2002 dated 16.08.2007 passed
by the learned Civil Judge (Sr. Dn.), Challakere.
4. R.S.A.No.286/2010 is filed praying this Court to set
aside the judgment and decree passed in R.A.No.78/2007
dated 07.10.2009 passed by the learned Additional District and
Sessions Judge, Chitradurga and confirming the judgment and
decree passed in O.S.No.372/2002 dated 16.08.2007 passed
by the learned Civil Judge, (Sr. Dn.), Challakere.
5. In all these regular second appeals, common
grounds are urged by all the appellants seeking to set aside the
common judgment and decree passed in R.A.Nos.77/2007,
78/2007 and 43/2008 dated 07.10.2009 by the learned
Additional District and Sessions Judge, Chitradurga.
6. The factual matrix of case of the plaintiffs in the
original suits while seeking the relief of partition and separate
possession in both the suits i.e., O.S.Nos.275/2002 and
372/2002 is that plaintiffs in O.S.No.275/2002 have got half
share in the suit schedule properties. Hence, filed the suit for
the relief of partition and separate possession and this suit is
between the children of late Revanna and the children of late
– 23 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
Puttalingappa. The defendants in the said suit contended that
suit schedule properties are the joint family properties of both
the families and contend that suit is bad for non-joinder of
necessary parties.
7. The suit in O.S.No.372/2002 is filed by sons of late
Puttalinganna against defendant Nos.1 and 2, who are the sons
of Revanna and other defendants, who are the sons of
Eswarappa, Mallamma and Mallappa, wherein they contend that
all the suit schedule properties are the ancestral and joint
family properties of themselves and defendants and also
contend in the suit that partition deed dated 30.08.1978 is not
binding upon their share on the ground that there was no
earlier partition between the sons of propositus of the family.
The defendant No.1 in the written statement took the
contention that suit schedule properties situated at
Chikkachellur Village belongs to defendant Nos.3 to 11 and
neither the plaintiffs in O.S.No.372/2002 nor the defendant
Nos.1 and 2 have any right in respect of those properties. It is
also contented that already there was partition between the
family members and suit is barred by limitation and also bad
– 24 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
for non-joinder and mis-joinder of necessary parties and
contend that suit itself is not maintainable.
8. The defendant No.12 appeared and filed her written
statement contending that she is the daughter of
Sannalingappa and she has got share in the properties of her
father and raised a counter claim contending that she is also
entitled for a share in the suit schedule properties.
9. The plaintiffs, in order to prove their case,
examined plaintiff No.1 in O.S.No.275/2002 as P.W.1 and a
witness as P.W.2 and got marked the documents as Exs.P1 to
P12. On the other hand, the defendant No.2 in
O.S.No.275/2002 is examined as D.W.1 and 4 witnesses are
examined as D.W.2 to D.W.4. The defendant No.12 is examined
as D.W.5 and got marked the documents as Exs.D1 to D142.
10. The Trial Court considering the material on record,
dismissed both the suits in O.S.Nos.275/2002 and 372/2002,
including the counter claim made by defendant No.12 in
answering issue Nos.1 and 2 in O.S.No.275/2002 as ‘negative’
that plaintiffs failed to prove that they have got half share in
the suit schedule properties and defendants failed to prove that
– 25 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
the properties mentioned in paragraph No.4 at page No.4 of the
written statement are also joint family properties of themselves
and the plaintiffs and plaintiffs are not entitled for the relief of
partition as there was already a partition and the same is
evident from the document Ex.D60 and so also answered issue
Nos.1, 2, 3 and 7 in O.S.No.372/2002 as ‘negative’ and
answered issue No.4, 5 and 6 as ‘affirmative’ in coming to the
conclusion that defendants have proved that suit schedule
properties situated at Chikkachellur Village belongs to
defendant Nos.3 to 11 and plaintiffs and defendant Nos.1 and 2
have no right and so also, suit is barred by limitation and bad
for non-joinder and mis-joinder of necessary parties. The
additional issue framed in O.S.No.372/2002 is answered as
‘negative’ rejecting the counter claim of defendant No.12.
11. Being aggrieved by dismissal of both the suits, the
parties have filed three regular appeals in R.A.Nos.77/2007,
78/2007 and 43/2008. The First Appellate Court having
considered the grounds urged in all the appeals, formulated the
points whether the judgment and decree passed in
O.S.Nos.275/2002 and 372/2002 dismissing the claim of
partition of the respective parties is perverse, capricious and
– 26 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
liable to be interfered by this Court and whether the learned
Civil Judge (Sr. Dn.), Challakere erred in rejecting the counter
claim of defendant No.12 in O.S.No.275/2002.
12. The First Appellate Court having reassessed both
oral and documentary evidence available on record, answered
point Nos.1 and 2 as ‘affirmative’ and allowed the appeals by
setting aside the judgment and decree passed in
O.S.No.275/2002 and O.S.No.372/2002 dated 16.08.2007 by
the learned Civil Judge (Sr. Dn.), Challakere and held that
plaintiffs in O.S.No.275/2002 (defendant Nos.1 and 2 in
O.S.No.372/2002) i.e., heirs of Mariyappa together are entitled
for partition and separate possession of their 1/4th share in all
the suit schedule properties situated at Kadeudevu and
Chikkachellur Village. The defendant Nos.1 to 3 in
O.S.No.275/2002 (plaintiffs in O.S.No.372/2002) i.e., heirs of
Chikkanna together are entitled for partition and separate
possession of their 1/4th share in all the suit schedule
properties situated at Kadeudevu and Chikkachellur Village. The
defendant No.12 in O.S.No.372/2002 i.e., heirs of
Sannalingappa together are entitled for partition and separate
possession of their 1/4th share in all the suit schedule
– 27 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
properties situated at Kadeudevu and Chikkachellur Village
which includes the counter claim of defendant No.12 in
O.S.No.372/2002. The defendant Nos.3 to 11 in
O.S.No.372/2002 i.e., heirs of Basappa together are entitled for
partition and separate possession of their 1/4th share in all the
suit schedule properties situated at Kadeudevu and
Chikkachellur Village. Being aggrieved by the judgment and
decree of both the Trial Court and the First Appellate Court,
present regular second appeals are filed before this Court.
13. The common ground urged by learned Senior
counsel appearing for the appellants in all the appeals is that
no dispute with regard to the fact that original propositus of the
family is Doddalingappa @ Lingappa and he had six children
namely Kariyanna, Mallappa, Mariyappa, Basanna, Chikkanna
and Sannalingappa. It is also not in dispute that first son
Kariyanna and second son Mallappa died issueless. The third
son Mariyappa, fourth son Basanna, fifth son Chikanna and
sixth son Sanalingappa are married and having children. The
sixth son Sannalingappa is having daughters by name
Eswaramma and Deviramma. The legal heir of Mariyappa
branch i.e., Revanna had two sons i.e., Thippeswamy and
– 28 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
Mahanteswarappa, who are the plaintiffs in O.S.No.275/2002.
Basappa had two sons Mallanna and Eswarappa and their
branches are defendant Nos.3 to 8 through Mallanna and
defendant Nos.9 to 11 through Eswarappa. The other son,
Chikkanna had a son by name Puttalinganna and his sons i.e.,
plaintiff Nos.1 to 3 in O.S.No.372/2002 have also filed the suit
for the relief of partition in respect of the suit schedule
properties.
14. This Court would like to make it clear at the first
instance itself that there is no dispute with regard to the
genealogy of the family of the parties and all the families admit
that Doddalingappa @ Lingappa is the propositus of the family
and no dispute with regard to the relationship between the
parties. Now, the very contention of learned Senior counsel
appearing for the appellants in all the appeals is that the Trial
Court rightly dismissed the suit on the ground of limitation and
non-joinder and mis-joinder of necessary parties and also
already there was a partition which has taken place long back
and subsequently, parties have also acted upon the same. The
counsel also contend that there was partition between other
two branches of the family and the same was registered on
– 29 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
30.08.1978. The counsel also vehemently contend that very
suit itself is not maintainable, since already there was a
partition and the appellants are the legal representatives of
Basappa and in O.S.No.275/2002, the parties have admitted
the partition and the suit in respect of O.S.No.275/2002 is filed
in respect of the properties which are situated at Kadeudevu
Village. The suit in O.S.No.372/2002 is filed in respect of both
the Villages i.e., Kadeudevu and Chikkachellur. The counsel
would vehemently contend that father of the plaintiffs in
O.S.No.372/2002 is signatory to the document of partition
dated 30.08.1978 i.e., Puttalinganna had signed the same as
witness. Hence, it is very clear that in the document of the said
partition deed, it is specifically mentioned that already there
was a partition among the family members of propositus
Doddalingappa @ Lingappa. Hence, they effected partition
among themselves, that means the father of the plaintiffs in
O.S.No.372/2002 has acknowledged that earlier there was a
partition and parties have entered into a partition through a
registered document dated 30.08.1978. The counsel also
submits that M.R. also shows that there was already a partition
and IHC is also mentioned in the document Ex.D12. The
counsel also submits that in Ex.P1, the name of the parties is
– 30 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
clearly mentioned and only the name of Chikkanna and
Revanna are mentioned in Ex.D6. The counsel also submits that
Exs.D5 to D9 are the sale deeds and partition deed dated
30.08.1978 is marked as Ex.D60. The recitals of the document
of Ex.D60 is very clear that already there was partition in the
family. Hence, they effected partition among themselves. The
document of Ex.D61 is also clear that names of sons of
Mallanna are mentioned and Ex.D6 is also evident for partition.
15. The counsel would submit that appellants have
purchased the properties after the partition that took place long
back and item No.3 was sold in 1991 in terms of Ex.D75 and so
also item No.10 was sold as per Ex.D35 and item No.11 was
already sold as per Ex.D36. The Ex.D54 to Ex.D59 clearly
evidence the fact of partition as well as subsequent sale. The
counsel would vehemently contend that First Appellate Court
while reversing the judgment of the Trial Court failed to comply
with the very proviso of Order 41 Rule 31 and not met the
issues which have been considered by the Trial Court,
particularly issue Nos.2, 4 and 5, i.e., with regard to limitation,
and non-joinder of necessary parties and the same was not
discussed in the appeal. The counsel would vehemently contend
– 31 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
that admission of P.W.1 is very clear with regard to earlier
partition and subsequent sale deeds have not been questioned
by the plaintiffs in O.S.No.372/2002 and once the properties
were already sold in terms of Exs.D75, D35 and D36, question
of granting any relief does not arise. The counsel would
vehemently contend that in O.S.No.275/2002, the plaintiffs
have sought for the relief of partition of half share. But, the
First Appellate Court committed an error in granting 1/4th
share. But, in O.S.No.372/2002, claimed 1/3rd share and also
sought for the relief to declare that partition is not binding.
However, the First Appellate Court granted 1/4th share to all in
respect of all the suit schedule proeprties. The counsel would
vehemently contend that defendant No.12 is not the co-
parcener and the very approach of the First Appellate Court is
erroneous and not met all the issues and only comes to the
conclusion that there was no partition and only it is a family
arrangement. Even though, First Appellate Court comes to the
conclusion that already it is only a family arrangement, but
erroneously comes to the conclusion that partition was not
effected between the parties.
– 32 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
16. The counsel would vehemently contend that two
applications are filed one under Order 6, Rule 17 of CPC,
wherein it is specifically pleaded that purchasers have not been
made as parties and without making them as parties, question
of deciding the issue between the parties does not arise. The
counsel also vehemently contend that another application is
also filed under Order 41 Rule 27 of CPC for producing the
additional documents and those documents are also necessary
for deciding the second appeal. The counsel would vehemently
contend that under Section 115 of the Evidence Act, the Court
can draw an adverse inference and the respondents have
estopped from contending that there was no partition. The
counsel also would submit that Section 3 of Transfer of
Property Act, 1882 is very clear that plaintiffs had the
knowledge about the sale made by the defendants in respect of
item Nos.3, 10 and 11. But, not sought any appropriate relief.
Hence, prayed this Court to allow the second appeals and also
permit the appellants to amend the written statement as
sought in the application filed under Order 6, Rule 17 of IPC
and also allow the application filed under Order 41, Rule 27 of
CPC.
– 33 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
17. Learned counsel for respondents, who are the
plaintiffs in O.S.No.372/2002 in his argument would
vehemently contend that no dispute with regard to the
relationship between the parties. The counsel would
vehemently contend that there was no partition. Hence,
claimed 1/4th share and the First Appellate Court has not
committed any error and taken note of the error committed by
the Trial Court in relying upon the document of Ex.D60. The
counsel also vehemently contend that in the written statement,
the defendants specifically pleaded that there was oral partition
six years ago and to prove the said factum of oral partition,
nothing is placed on record and the same is taken note by the
First Appellate Court. The counsel would vehemently contend
that in order to prove the factum of oral partition, no
documents are produced and parties have also not acted upon
it and to evidence the earlier oral partition, no documents are
produced. There was no reference of division in any of the
revenue records and only it is mentioned as IHC. The counsel
would vehemently contend that the partition in terms of Ex.D60
dated 30.08.1978 is only between children of Basappa and
Sannalingappa and these plaintiffs are not parties to the said
partition. The Trial Court failed to appreciate the documents
– 34 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
available on record and only relied upon the recitals of the
document partitions deed at Ex.D60.
18. The counsel would contend that Chikkanna was
alive at the time of registration of said partition deed and he
has not signed the same. But, not disputed that Puttalinganna,
father of the plaintiffs has signed the partition dated
30.08.1978. The counsel would vehemently contend that
merely making a signature as a witness cannot be taken into
consideration against the respondents/plaintiffs and the Court
cannot draw an adverse inference under Section 115 of the
Evidence Act. The counsel would vehemently contend that
other family members are not parties to the said partition and
also contend that even with regard to oral partition, no
mutation or other documents evidencing the partition was
placed before the Court and all these factors were rightly taken
note by the First Appellate Court. The counsel would
vehemently contend that First Appellate Court met the issues
and the Trial Court has not met all the issues and erroneously
comes to the conclusion that already there was a partition in
the year 1978 and suit is barred by limitation and it is only a
inter-se partition between the children of Basappa and
– 35 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
Sannalingappa and not among the family members, question of
limitation does not arise. The counsel also vehemently contend
that limitation starts from the date of knowledge and not from
the registration of the partition deed. The First Appellate Court
held that it is only a family arrangement and there was no
partition of the suit schedule properties by metes and bounds.
It is contended that there was partition in the year 1935 itself
and to evidence the said fact, nothing is placed on record. The
First Appellate Court considered the case of the plaintiffs as
well as the defendants and passed the order reversing the
judgment of the Trial Court and the reasoning is very clear.
Hence, question of reversing the judgment of the First
Appellate Court does not arise. The counsel would vehemently
contend that Section 3 of Transfer of Property Act, 1882 not
comes to the aid of the appellants as the respondents are not
parties to the said partition. The counsel would vehemently
contend that detailed objection statement is filed for the
application filed under Order 6, Rule 17 of CPC and so also the
application filed under Order 41, Rule 27 of CPC and question of
amendment does not arise and production of additional
documents also does not arise. Hence, both the applications
requires to be dismissed.
– 36 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
19. The counsel appearing for other respondents i.e.,
plaintiffs in O.S.No.275/2002 would reiterate the arguments of
learned counsel for respondents, who are the plaintiffs in
O.S.No.372/2002 and contend that in order to prove that there
was partition in the year 1935, no documents are filed and
parties have also not acted upon the same. The partition of the
year 1978 is not binding, since they are not parties to the
same. The counsel would vehemently contend that First
Appellate Court while reversing the judgment of the Trial Court
rightly comes to the conclusion that Trial Court has committed
an error. Hence, it does not require any interference.
20. In reply to this argument of learned counsel for the
respondents i.e., plaintiffs in O.S.No.275/2002 and learned
counsel for respondents i.e., plaintiffs in O.S.No.372/2002,
learned Senior counsel appearing for the appellants would
vehemently contend that in paragraph No.2 of the suit in
O.S.No.275/2002, categorically admitted the partition. In
O.S.No.372/2002 also, in the written statement categorically
admitted that there was partition by the plaintiffs in
O.S.No.275/2002. Hence, now they cannot blow hot and cold
that there was no partition. The counsel also vehemently
– 37 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
contend that appellants have purchased the properties and
those properties are also stated as joint family properties and
the same was also not discussed by the First Appellate Court
whether they are entitled for any share in those properties. The
counsel would contend that Exs.P1 to Ex.P7 substantiate that
there was oral partition. The document Ex.D6 discloses both
the names in the revenue documents. The counsel would
vehemently contend that the documents at Exs.D60, D61, D66
came into existence subsequently evidencing the factum of
partition. The admission of P.W.1 also takes away the case of
the respondents. The witness D.W.4 also categorically says that
there was already partition and sisters were not made as
parties in both the cases in O.S.No.275/2002 and also in
O.S.No.372/2002. Exs.D54 to D59 are the documents relating
to properties which are purchased and to that effect also there
was no finding by the First Appellate Court while reversing the
judgment of the Trial Court and the First Appellate Court ought
to have considered the same. The properties which have been
sold through the documents of Ex.D34 to Ex.D36 are also
included in the partition and the persons, who have purchased
the properties are not made as parties. The counsel would
vehemently contend that, in order to make counter claim also,
– 38 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
Article 110 Applies i.e., exclusion of joint family members and
in O.S.No.372/2002, only prayer is for partition and not
questioned the sale deeds and sought for the relief that
partition deed of the year 1978 is not binding and the suit was
filed in 2002 after long time. Hence, the Trial Court rightly
comes to the conclusion that suit is barred by limitation and
two applications are filed before the Court for amendment as
well as additional documents and without making the
purchasers as parties to the proceedings, there cannot be any
decree and even if any decree is passed, the same cannot be
executed.
21. In reply to this argument of learned Senior counsel
for the appellants, learned counsel for the respondents i.e.,
plaintiffs in O.S.No.275/2002 and learned counsel for
respondents i.e., plaintiffs in O.S.No.372/2002 would submit
that at the time of execution of document at Ex.D60, it is
specifically mentioned that Chikkanna was alive. Under the
circumstances, question of reversing the judgment of the First
Appellate Court does not arise.
22. Learned Senior counsel for the appellants, in
support his argument relied upon the judgment of the Apex
– 39 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
Court in DIGAMBAR ADHAR PATIL vs. DEVRAM GIRDHAR
PATIL (DIED) AND ANOTHER reported in 1995 SUPP (2)
SCC 428, wherein it is held that when partition between
respondent and his brother was claimed, Tribunals below
negativing the claim on grounds that in the cultivation column
of the revenue records respondent shown to have cultivated the
land and no documentary evidence of partition produced before
the authorities, held that tribunals erred in not adverting to
Record of Rights evidencing the factum of partition. Record of
Rights, corroborates oral evidence regarding partition. The
counsel also brought to notice of this Court discussion made in
paragraph Nos.5 and 6.
23. The counsel also relied upon the judgment of the
Apex Court in SMT. UMA DEVI AND OTHERS vs. ANAND
KUMAR AND OTHERS reported in 2025 (4) KCCR 3157
(SC). The Apex Court in this judgment held that plaintiffs failed
to plead date of knowledge of sale deeds and suppressed
material facts, the Trial Court rightly rejected the plaint, finding
it to be a belated and meritless attempt to reopen settled
family arrangements, the High Court erred in remanding case
despite overwhelming documentary evidence showing partition
– 40 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
and sale. The counsel also brought to notice of this Court
paragraph No.13 and also paragraph No.17.
24. The counsel also relied upon the judgment of this
Court in SRI S.M. MALLEGOWDA vs. S.M. ANNE GOWDA
AND OTHERS in R.F.A.NO.1395/2014 dated 03.07.2015
and brought to notice of this Court discussion made in
paragraph No.17 of the judgment.
25. The counsel also relied upon the judgment of this
Court in YAMANAVVA AND ANOTHER vs. CHANDRAWWA
reported in ILR 2005 KAR 2329, wherein also this Court held
that admission by the plaintiff in respect of the fact that there
was an earlier partition and there is enough material on record
based on which both the Courts below have concurrently held
that there was partition of the properties between plaintiff and
father of the defendant about 35 years back and no substantial
question of law arises for consideration and brought to notice of
this Court discussion made paragraph Nos.8 and 11.
26. The counsel also relied upon the judgment of this
Court in SRI K. IMMANNA vs. S. NEMOJI RAO AND OTHER
in R.F.A.NO.1206/2004 dated 19.02.2020 and brought to
– 41 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
notice of this Court discussion made in paragraph Nos.26 and
27 regarding partition.
27. The counsel also relied upon the judgment of this
Court in SMT. RENUKAMMA vs. SMT. GIDDAMMA AND
OTHERS in R.S.A.NO.1298/2017 dated 17.03.2023 and
brought to notice of this Court discussion made in respect of
scope of regular second appeal and Article 58 of the Limitation
Act and since the suit was filed after the period of limitation,
the suit was barred by limitation.
28. Learned counsel for the respondents also relied
upon the judgment of this Court in BANGARAPPA vs.
RUDRAPPA AND ANOTHER in R.S.A.NO.1685/2005 dated
13.01.2012. The counsel relying upon this judgment would
contend that First Appellate Court rightly exercised its power
while considering the matter. However, taking note of material
on record, restored the appeal and remitted the matter to the
First Appellate Court for its consideration afresh, in accordance
with law.
29. This Court while considering the matter at the time
of admission, considering the grounds which has been urged by
– 42 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
both the appellants and the respondents and also considering
the material available on record, framed the following
substantial questions of law which reads as hereunder:
(a) Whether the first appellate court has failed in
its functions in not having addressed the
issues 5 and 6, which was decided against
the defendants by the trial Court?
(b) Whether the first appellate court was justified
in not complying with Order XLI Rule 31 in
reversing the judgment and decree of the
trial Court, without addressing findings as
regards issue no.2, which was framed by the
trial court and held against the defendants in
respect of the suit properties claimed by the
defendants as being joint family properties?”
30. Having considered the grounds which have been
urged in the regular second appeals as well as oral submissions
of learned Senior counsel for the appellants and learned
counsels for the respondents/plaintiffs in O.S.Nos.275/2002
and 372/2002 and also considering the substantial questions of
law framed by this Court at the time of admission, this Court
has to consider the issues involved between the parties in the
light of substantial questions of law, particularly keeping in
view the scope of Order 41, Rule 31 of CPC.
– 43 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
31. Apart from that, in view of the applications which
are filed before this Court by the appellants i.e., under Order 6,
Rule 17 of CPC as well as Order 41, Rule 27 of CPC, the
following additional points arise for consideration before this
Court:
(i) Whether the application filed under Order 6,
Rule 17 of CPC deserves to be allowed to
amend the written statement as sought?
(ii) Whether the application filed under Order 41,
Rule 27 of CPC for production of additional
documents deserves to be considered for
consideration of these regular second appeals?
Substantial question of law (a) and (b):
32. Having considered the substantial questions of law
and also the grounds which have been urged in all the three
appeals and also the oral submissions of the respective
counsel, this Court has to take note of the reasoning given by
the First Appellate Court while disposing of the appeal and
whether the First Appellate Court has committed an error in not
complying with Order 41 Rule 31 of CPC in reversing the
judgment and decree of the Trial Court without addressing the
findings as regards issue No.2, which was framed by the Trial
– 44 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
Court and held against the defendants in respect of the suit
properties claimed by the defendants as being joint family
properties. Having considered the material on record, the suit is
filed for the relief of partition and separate possession. The
Court has to take note of the plaint averments as well as the
written statement filed by the defendants in O.S.No.275/2002
and O.S.No.372/2002. The crux of the issue in the suit is
whether the plaintiffs have got share in the suit schedule
properties and also in terms of the written statement whether
already there was a partition. The issue was raised in both the
suits with regard to the non-joinder and mis-joinder of
necessary parties and so also parties claim that in terms of the
earlier partition in respect of the properties of both the villages,
already there was a partition among the legal heirs of original
propositus and so also with regard to the counter claim.
33. Having perused the grounds which have been
narrated in all the three appeals and points for consideration
framed by the First Appellate Court, the First Appellate Court
framed only two points for consideration. The first one is
whether the judgment and decree of the Trial Court dismissing
the claim of partition of the respective parties is perverse,
– 45 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
capricious and liable to be interfered by this Court? The second
point for consideration is whether the Trial judge erred in
rejecting the counter claim of defendant No.12 in
O.S.No.275/2002? Having perused the reasoning of the First
Appellate Court, in paragraph Nos.18, 19 and 20 only discussed
with regard to the partition and in respect of the document
Ex.D.60 partition deed dated 13.08.1978 and so also with
regard to the observations made by the Trial Court in respect of
the partition is concerned and comes to the conclusion that the
Trial Judge erred in relying upon the document of Ex.D.60. It is
also observed that if at all a oral partition was effected, as
stated in the partition deed between the heirs of
Doddalingappa, their names would have been recorded
separately in respect of allotment of said properties. No such
mutation entries were produced by either of the parties to show
the oral partition effected. It is important to note that an
observation is made that the revenue entries have been in the
name of shares of Doddalingappa in respect of Kadeudevu and
Chikkachellur properties separately only indicates that there
was an amicable arrangement, possession and enjoyment of
the family properties, as the properties were separately
situated in two villages without effecting a partition or
– 46 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
disruption of the joint family property and absolutely there is
no direct evidence of partition available. However, the First
Appellate Court fails to take note of the entry found in the RTC
mentioning the IHC and all discussion is only in respect of
earlier partition. Though point for consideration is framed as to
whether the reasoning of the Trial Court is capricious and
perverse, the First Appellate Court did not discuss anything
about the issue of limitation, which was answered by the Trial
Court that suit was barred by limitation and also with regard to
suit is bad for non-joinder of necessary parties as contended in
paragraph No.2 of the written statement. A specific issue was
framed in O.S.No.372/2002 i.e., issue No.5 in view of the said
defence that suit is barred by limitation on the ground that
there was already a partition and also issue No.6 with regard to
the suit is bad for non-joinder and mis-joinder of necessary
parties and no such points were framed and no such discussion
was made by the First Appellate Court. Hence, it is clear that
the First Appellate Court was not justified in not complying with
Order 41 Rule 31 of CPC in reversing the judgment and decree
of the Trial Court.
– 47 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
34. The First Appellate Court being the statutory
Appellate Court, ought to have discussed both question of fact
and question of law while dealing with the first appeal and
there were issues with regard to the limitation as well as mis-
joinder and non-joinder of necessary parties and it was
specifically pleaded that the properties were sold subsequent to
the oral partition and also specifically pleaded that purchasers
have not been made as parties and the same is non-joinder of
necessary parties. The law is settled that when an appeal is
filed and the same being the statutory appeal, the same is like
a suit and though it is termed as an appeal, all the pleadings as
well as the evidence ought to have been assessed by the First
Appellate Court both in the respect of question of fact and
question of law and the same has not been done. Hence, in this
regard, I would like to rely upon the judgment of the Apex
Court in the case of MANJULA AND OTHERS v.
SHYMANSUNDAR AND OTHERS reported in (2022) 3 SCC
90, wherein it is held that the judgment of the Appellate Court
must, therefore, reflect conscious application of mind and must
record the Court’s findings, supported by reasons for its
decision in respect of all issues, along with contentions put
– 48 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
forth and pressed by parties. Paragraph No.8 of the said
judgment reads as under:
“8. Section 96 of the Civil Procedure Code, 1908
(for short, “CPC“) provides for filing of an appeal
from the decree passed by a court of original
jurisdiction. Order 41 Rule 31 of CPC provides the
guidelines to the appellate court for deciding the
appeal. This rule mandates that the judgment of the
appellate court shall state:
(a) points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed
or varied, the relief to which the appellant is entitled.
Thus, the appellate court has the jurisdiction to
reverse or affirm the findings of the trial court. It is
settled law that an appeal is a continuation of the
original proceedings. The appellate court’s
jurisdiction involves a rehearing of appeal on
questions of law as well as fact. The first appeal is a
valuable right, and, at that stage, all questions of
fact and law decided by the trial court are open for
re-consideration. The judgment of the appellate court
must, therefore, reflect conscious application of mind
and must record the court’s findings, supported by
reasons for its decision in respect of all the issues,
along with the contentions put forth and pressed by
– 49 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
the parties. Needless to say, the first appellate court
is required to comply with the requirements of Order
41 Rule 31 CPC and non-observance of these
requirements lead to infirmity in the judgment.”
35. This Court would like to rely upon the judgment of
the Apex Court in the case of MALLURU MALLAPPA (D) THR.
L.RS. v. KURUVATHAPPA AND OTHERS reported in
MANU/SC/0166/2020, wherein in paragraph No.11, it is
held as under:
“11. Section 96 of the CPC provides for filing of
an appeal from the decree passed by any court
exercising original jurisdiction to the court authorized
to hear the appeals from the decisions of such
courts. In the instant case, the appeal from the
decree passed by the trial court lies to the High
Court. The expression ‘appeal’ has not been defined
in the CPC. Black’s Law Dictionary (7th Edn.) defines
an appeal as “a proceeding undertaken to have a
decision reconsidered by bringing it to a higher
authority.” It is a judicial examination of the decision
by a higher court of the decision of a subordinate
court to rectify any possible error in the order under
appeal. The law provides the remedy of an appeal
because of the recognition that those manning the
judicial tiers too commit errors.”
– 50 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
36. The Apex Court in its judgment in the case of
SHASIDHAR AND OTHERS v. ASHWANI UMA MATHAD
AND ANOTHER reported in MANU/SC/0025/2015, in
paragraph No.21 held as under:
“21. Being the first appellate court, it was,
therefore, the duty of the High Court to decide the
first appeal keeping in view the scope and powers
conferred on it under Section 96 read with Order 41
Rule 31 of the Code mentioned above. It was
unfortunately not done, thereby, causing prejudice to
the appellants whose valuable right to prosecute the
first appeal on facts and law was adversely affected
which, in turn, deprived them of a hearing in the
appeal in accordance with law.”
37. This Court would like to rely upon the judgment of
the Apex Court in the case of C.VENKATA SWAMY v. H.N.
SHIVANNA (D) BY L.R. AND OTHERS reported in
MANU/SC/1518/2017, wherein the scope of Section 96 of
CPC is discussed in detail. In paragraph No.11 it is held that the
jurisdiction of the First Appellate Court while hearing the first
appeal is very wide like that of the Trial Court and it is open to
the appellant to attack all findings of fact or/and of law in first
appeal. It is the duty of the First Appellate Court to appreciate
– 51 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
the entire evidence and arrival at its own independent
conclusion, for reasons assigned, either of affirmance or
difference. In this judgment, the Apex Court relied upon the
judgment in the case of SANTOSH HAZARI v.
PURUSHOTTAM TIWARI (DECEASED) BY L.Rs. reported in
(2001) 3 SCC 179, wherein at pages 188-189 it is held as
under:
…. The Appellate Court has jurisdiction to reverse
or affirm the findings of the Trial court. First appeal
is a valuable right of the parties and unless restricted
by law, the whole case is therein open for rehearing
both on questions of fact and law. The judgment of
the Appellate Court must, therefore, reflect its
conscious application of mind and record findings
supported by reasons, on all the issues arising along
with the contentions put forth, and pressed by the
parties for decision of the Appellate Court……While
reversing a finding of fact the Appellate Court must
come into close quarters with the reasoning assigned
by the Trial Court and then assign its own reasons
for arriving at a different finding. This would satisfy
the Court hearing a further appeal that the First
Appellate Court had discharged the duty expected of
it………….”
– 52 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
38. The Apex Court in its judgment in the case of
MADHUKAR AND OTHERS v. SANGRAM AND OTHERS
reported in (2001) 4 SCC 756, reiterated that sitting as a
Court of first appeal, it is the duty of the High Court to deal
with all the issues and the evidence led by the parties before
recording its findings.
39. The Apex Court in its judgment in the case of
H.K.N. SWAMI v. IRSHAD BASITH reported in (2005) 10
SCC 243, in paragraph No.3 held as follows:
“3. The first appeal has to be decided on facts as
well as on law. In the first appeal parties have the
right to be heard both on questions of law as also on
facts and the First Appellate Court is required to
address itself to all issues and decide the case by
giving reasons. Unfortunately, the High Court, in the
present case has not recorded any finding either on
facts or on law. Sitting as the First Appellate Court it
was the duty of the High Court to deal with all the
issues and the evidence led by the parties before
recording the finding regarding title.”
40. The Apex Court in the case of JAGANNATH v.
ARULAPPA AND ANOTHER reported in (2005) 12 SCC 303,
– 53 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
held that a Court of first appeal can reappreciate the entire
evidence and come to a different conclusion.
41. The Apex Court in the case of MAHENDER PAL
CHABRA AND ANOTHER v. SUBHASH AGGRAWAL reported
in 2024 SCC Online SC 331, in paragraph No.8 held that the
First Appellate Court is the last Court which can appreciate the
evidence of record and record findings of fact. As such, a first
appeal normally should not be thrown out at the stage of Order
XLI to 11 CPC just as a plaintiff normally is not rejected under
Order VII to 11 CPC except for and on the grounds stated in
the said provision The appellate having paid full court fees
would be entitled to a reasonable discussion of the points raised
in first appeal based on appreciation of evidence laid before the
Trial Court. The Appellate Court at least ought to have
discussed the points raised by the appellant.
42. Having perused the principles laid down in the
judgment referred supra, as well as the material available on
record, this Court would like to answer the substantial
questions of law (a) and (b) that the First Appellate Court has
failed in its function in not having addressed issue 5 and 6,
which was decided against the plaintiffs before the Trial Court
– 54 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
with regard to the limitation, as well as suit is for bad for non-
joinder and mis-joinder of necessary parties. The second
substantial question of law is also whether the First Appellate
Court was justified in reversing the judgment and decree of the
Trial Court, without addressing the findings as regards to issue
No.2 in O.S.No.372/2002 and nothing is discussed in respect of
issue No.2 in O.S.No.372/2002. It is also the specific case of
the defendants that the properties, which have been included in
the suit schedule properties are the properties purchased by
them subsequent to the oral partition and also three items of
the suit schedule properties have already been sold and also
necessary parties have not been made as parties. The said
ground also should have been considered by the First Appellate
Court and the same has not been considered. The First
Appellate Court only concentrated with regard to whether there
was an earlier partition or not.
43. The main contention of the learned counsel for the
appellants is that the father of the plaintiffs has signed the
registered partition deed in the year 1978, when it was taken
place between the parties and he had the knowledge of
partition among themselves and he was also a witness to the
– 55 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
said document and the same has not been properly appreciated
by the First Appellate Court. Hence, the matter requires re-
consideration and the First Appellate Court has to exercise the
powers under Order 41 Rule 31 of CPC in complying with the
same as being the original proceedings treating the statutory
appeal as the original proceedings both in respect of question
of fact and question of law.
Additional point for consideration No.(i) and (ii):
44. The appellants/defendants have filed an application
I.A.No.2/2014 under Order 6 Rule 17 read with Section 151 of
CPC praying this Court to amend the written statement filed in
O.S.No.372/2002, wherein it is specifically pleaded to amend
the written statement in detail that during the lifetime of the
four brothers, they have divided the joint family properties
which were available at that time under oral partition about
more than 66 years back as on the date of filing of the suit
somewhere in the year 1936. In that oral partition, the
property situated at Kadehude Village were allotted to the
share of Mariyappa and Chikkanna and the property situated at
Chikkachelluru were allotted to the share of Basappa and
Sannalingappa. Thus, the joint family was disrupted. The son of
– 56 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
Mariyappa by name Revanna representing the estate of his
father continued to enjoy the properties along with his uncle
Chikkanna. Therefore, the revenue authorities effected change
of khatha and pahani separately in the name of Mariyappa and
Revanna vide IHC No.2/1960-61 as evidenced by the entries
mentioned in the revenue records separately till the date of
filing of the suit. During the year 1978 there was heavy debt
incurred by the family consisting of Basappa and Sannalingappa
which was outstanding and hence, got divided the property by
a registered partition deed dated 30.08.1978. It is also the
specific case of the defendants that the parties were dealing
with their properties individually and khatha, pahani and all
other revenue entries have been changed showing the name of
respective shares in accordance with the partition of the family
properties. The defendant No.12 Eshwaramma and her sister
Deveeramma have been enjoying the properties separately and
their names have been entered in the RTC of the properties
allotted to the share of Sannalingappa. It is also specifically
pleaded to amend the written statement paragraph No.11B and
C to that effect. It is pleaded that the properties were sold in
the year 1992 and 1995 and all these materials substantiate
their defence that already there was a partition.
– 57 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
45. No doubt, objection statement is filed to oppose this
application by respondent No.4 and the same is adopted by
respondent Nos.3 and 5. It is specifically contended that after
long gap, the present application is filed. On the other hand, it
causes prejudice. Having considered original pleadings of the
written statement and also the present pleading of Order 6 Rule
17 of CPC, the same is in corollary with the defence which have
been taken earlier in the written statement and in this written
statement it is only elaborately pleaded giving all details to
substantiate that there was already a partition and the parties
have acted upon and subsequent to the partition taken place
long back 66 years ago, in the year 1978 there was a partition
among the two branches of the family of original propositus and
some of the properties were purchased and some of the
properties were also sold.
46. Now the question before this Court is whether this
Court can permit for an amendment. The Apex Court in its
judgment in the case of SHIVSHANKARA AND ANOTHER v.
H.P. VEDAVYASA CHAR reported in (2023) 13 SCC 1, with
regard to entertaining an application under Order 41 Rule 27 of
CPC and Order 6 Rule 17 – amendment of written statement at
– 58 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
appellate stage, categorically held that permissible in rarest of
rare case, having regard to attending circumstances and not on
mere asking. But the Court should avoid hypertechnical
approach. In this judgment, it is made clear that if it is
required, the same can be amended even at the appellate
stage.
47. This Court also would like to rely upon the
judgment of the Apex Court in the case of M. REVANNA v.
ANJANAMMA (DEAD) BY LRS. AND OTHERS reported in
(2019) 4 SCC 332, with regard to when an application is filed
under Order 6 Rule 17 of CPC for amendment of the plaint, it is
held that leave to amend may be refused if it introduces a
totally different, new and inconsistent case, or challenges the
fundamental character of the suit. The proviso to Order 6 Rule
17 of CPC virtually prevents such nature of amendment. The
Court has to keep it in mind whether it amounts to introduction
of new case. But in the case on hand, no such introduction of
new case and only amendment is sought making elaborate in
the written statement giving full details.
48. The Apex Court in its judgment in the case of
BASAVARAJ v. INDIRA AND OTHERS reported in (2024) 3
– 59 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
SCC 705, taken note of with regard to the amendment of plaint
and the same is by way of amendment seeking relief of
declaration. Even if amendment is permitted, relief sought by
way of amendment was time barred was taken note of. The
Apex Court in its judgment in the case of LIFE INSURANCE
CORPORATION OF INDIA v. SANJEEV BUILDERS PRIVATE
LIMITED AND ANOTHER reported in (2022) 16 SSC 1, held
that not a bar to amendment otherwise permissible under
Order 6 Rule 17 of CPC and the same is not precluded from
making an amendment and the same is clarified in this
judgment and held that it is well settled that the Court must be
extremely liberal in granting the prayer for amendment, if the
Court is of the view that if such amendment is not allowed, a
party, who has prayed for such an amendment, shall suffer
irreparable loss and injury. It is also equally well settled that
there is no absolute rule that in every case where a relief is
barred because of limitation, amendment should not be
allowed. It is always open to the Court to allow an amendment
if it is of the view that allowing of an amendment shall really
subserve the ultimate cause of justice and avoid further
litigation. In the case on hand, it is nothing but explaining in
– 60 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
detail giving full particulars for amendment and the same is not
introducing a new case.
49. The Apex Court in the judgment in the case of
AKKIRAJU PANDURANGA RAO v. GUNDLAPALLY RANGA
RAO reported in (2026) SCC Online SC 805 taken note of
scope of Order 6 Rule 17 of CPC in paragraph No.14 and in
paragraph No.17 held that while deciding an application
seeking amendment of pleading, the Courts should not delve
into the technicalities of law; rather, a liberal approach should
be followed, inasmuch as the object and purpose of allowing
the amendment in the pleadings is to avoid multiplicity of
litigations.
50. Having considered the principles laid down in the
judgments referred supra and also the reasoning given in the
application, the same is only for amendment in detail corollary
to the earlier defence, which was taken by the
defendants/appellants and the same will not cause any
prejudice. Hence, I.A.No.2/2014 filed under Order 6 Rule 17 of
CPC can be allowed. Hence, I answer the point accordingly.
– 61 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
51. I.A.No.3/2014 is filed under Order 41 Rule 27 read
with Section 151 of CPC praying this Court to permit the
appellants to produce additional documentary evidence. In
support of the application, an affidavit is sworn to that, on
appreciation of the evidence on record, the Trial Court
committed an error and contend that on account of
inadvertence and bonafide mistake, certain factual aspects
which have admittedly taken place within the full knowledge of
the contesting respondents and evidenced by registered
documents have not been pleaded. When the discussion was
made with the counsel, came to know that certain factual
aspects which have admittedly taken place within the
knowledge of the contesting respondents, ought to have been
pleaded in the written statement and also should have been
produced before the Court and hence obtained the certified
copies of the documents from various offices of the
Government such as Sub-Registrar and also the office of the
Tahsildar. On going through the documents which have been
obtained, it is noticed that the claim made by the plaintiffs and
the counter claim made by defendant No.12 are false and
fictitious. For the final and effective adjudication of the dispute
between the parties, these documents are necessary i.e.,
– 62 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
registered sale deeds and mutation register extracts relating to
some of the suit schedule properties so as to bring to the notice
of the Court the events that have been taken place before filing
of the suit and those documents are very much necessary to
decide the appeal.
52. This application is also opposed by filing statement
of objections contending that this application is filed belatedly
and those documents are not necessary for adjudication of the
issues involved between the parties.
53. Having considered the grounds which have been
urged in the application as well as statement of objections, no
doubt these documents are not produced before the First
Appellate Court while disposing of the matter. Only in this
second appeal these documents are produced. But it is the
specific case of the defendants before the Trial Court that the
suit is barred by limitation as well as bad for mis-joinder and
non-joinder of necessary parties. It is specifically pleaded with
regard to the sale of the property and purchase of some of the
properties and also suit is filed for partition in respect of those
properties, which have been purchased subsequent to the oral
partition. When such plea was taken, this Court allowed the
– 63 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
application filed under Order 6 Rule 17 of CPC to take up the
specific defence in detailed written statement. The additional
documents sought to be produced are the registered
documents which came into existence subsequently according
to the defendants i.e., sale deed dated 20.12.1978 executed by
the father of appellants Nos.1 to 6 in favour of Basanna S/o
Lingappa, sale deed dated 23.07.1992 executed by appellants
Nos.7 to 9 and their mother Smt. Lingamma in favour of
Chikanna S/o Kariyappa, sale deed dated 27.03.1995 executed
by appellant Nos.1 to 6 in favour of Eranna and Mahalingappa,
sons of Ninganna, sale deed dated 27.01.2003 executed by
appellant No.6 and his wife Smt. Channabasamma in favour of
Thippamma W/o Thippeswamy and Veeramma W/o
Mahantheshappa, mutation register extracts in respect of MR
No.1/1979-80, M.R.No.12/1991-92, M.R.No.4/1995-96 and
M.R.No.11/2002-2003. The crux of the issue involved between
the parties is with regard to whether there was already a
partition or not. It is the case of the plaintiffs before the Court
that there was no such partition and the defence of the
appellants is that there was already a partition and the same
was taken place long back. The Appellate Court also comes to
the conclusion that there was a family arrangement and there
– 64 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
was no partition of metes and bounds and when such issue is
raised before the Court, it is appropriate to allow the
application filed under Order 41 Rule 27 of CPC and the same is
necessary for deciding the issue involved between the parties
and the second appeal does not preclude from filing such an
application. Hence, the application filed under Order 41 Rule 27
also needs to be allowed.
54. In view of the discussions made above and as this
Court comes to the conclusion that the First Appellate Court
committed an error in not complying with Order 41 Rule 31 of
CPC, the matter requires to be remanded back to the First
Appellate Court for consideration of the matter afresh
permitting the appellants to amend the written statement as
well as file the additional documents. In view of allowing of
these applications, the matter requires to be remitted back to
the First Appellate Court to consider the same as the First
Appellate Court fails to exercise the powers and comply with
Order 41 Rule 31 of CPC. The First Appellate Court requires to
record the evidence in view of the additional evidence as well
as additional written statement and both the parties may be
given an opportunity to substantiate their case. It has to be
– 65 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
noted that, there was a sale of the properties and sale deeds
are also executed by the appellants on different dates and
hence, the purchasers are also to be made as parties to the
proceedings, since in their absence, if any decision is taken, it
may affect their rights. The plaintiffs have sought for the relief
in respect of the properties, which have been sold and hence,
they may be heard. Considering all these matters into
consideration and also the substantial questions of law
answered by this Court and also the additional points for
consideration, this Court passed the following:
ORDER
(i) The appeals are allowed.
(ii) The impugned judgments passed in
R.A.Nos.43/2008, 77/2007 and 78/2007 are
set aside.
(iii) The applications filed under Order 6 Rule 17
of CPC and Order 41 Rule 27 of CPC are
allowed.
(iv) The matter is remitted back to the First
Appellate Court to consider the appeals in
view of the observations made by this Court.
The First Appellate Court is directed to give
an opportunity to the respective parties.
– 66 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
(v) The parties are directed to appear before the
First Appellate Court on 27.07.2026.
(vi) The plaintiffs are directed to implead the
subsequent purchasers of the suit schedule
properties against the said sold properties
they made the claims.
(vii) The plaintiffs are also directed to file
necessary application immediately to bring
the purchasers as parties to the proceedings
within one month from that date.
(viii) The First Appellate Court is directed to give an
opportunity to the purchasers as well as the
parties in the appeal to substantiate their
case by adducing their evidence and in view
of impleadment of subsequent purchasers
and this Court having taken note of the same
in abundant caution, the First Appellate Court
is directed to dispose of the appeal within one
year from 27.07.2026.
(ix) The parties already in the appeal need not
expect any notice from the First Appellate
Court and shall voluntarily appear before the
Court on 27.07.2026 without fail.
– 67 –
RSA No. 285 of 2010
C/W RSA No. 284 of 2010
RSA No. 286 of 2010
(x) The Registry is directed to send the records to
First Appellate Court, forthwith to enable the
First Appellate Court to take up the matter on
27.07.2026.
Sd/-
(H.P.SANDESH)
JUDGE
ST/MD
