Vidyesh I K Vs Smt. I C Pushpavathi

SMT. I.C. USHA KUMARI AGED ABOUT 52 YEARS D/O LATE I. CHENNAPPA GOWDA W/O K.V. KUSUMADHARA R/O GOONADKA HOUSE SAMPAJE VILLAGE AND GOONADKA POST SULLIA TLAUK D.K 574234

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I.C. UDAYA KUMAR S/O LATE I. CHENNAPPA GOWDA AGED ABOUT 50 YEARS R/O IDYAPPE HOUSE KEDAMBADI VILLAGE AND POST PUTTUR TALUK D.K. 574 210

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I.K. SUMANTH AGED ABOUT 14 YEARS S/O I.C. UDAYA KUMAR R/O IDYAPPE HOUSE KEDAMBADI VILLAGE AND PST PUTTUR TALUK D.K. 574 210 MINOR REPRSENTED BY THEIR NATURAL GUARDIAN/FATHER NO.4 I.C. UDAYA KUMAR

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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I.C. BHUVANENDRA AGED ABOUT 46 YEARS S/O LATE I. CHENNAPPA GOWDA R/O IDYAPPE HOUSE KEDAMBADI VILLAGE AND POST PUTTUR TALUK

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D.K. 574 210

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SNEHAL

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AGED ABOUT 31 YEARS D/O K. KUSUMADHARA

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8. UJWAL

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S/O KUSUMADHARA AGED ABOUT 28 YEARS

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7 AND 8 ARE R/AT GUNADKA GUNADKA POST AND SAMPAJE VILLAGE SULLIA TALUK D.K, 574234

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…RESPONDENTS

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(BY SRI. VIGNESHWARA U FOR R1 AND R6; SRI. DEEPAK FOR R3 TO R5, R7 AND R8; R2-I C KAILAS SD)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.09.2022 PASSED IN RA.NO.5006/2020 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT D.K, MANGALURU SITTING AR PUTTUR, D.K., ETC

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.Aniketh, learned counsel appearing on behalf of Sri.B.S.Sachin, learned counsel for the appellants and Sri.Vigneshwara U., learned counsel for respondent Nos.1 and 6. Learned counsel for respondent Nos.3 to 5, 7 and 8 is absent.

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2. Unsuccessful plaintiffs are the appellants in this

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second appeal challenging the dismissal of the suit in O.S.No.37/2014 filed for partition and separate possession

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in respect of following properties (hereinafter referred to

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as suit properties):

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'B' SCHEDULE

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Immovable properties situated in Kedambadi Village, Puttur Taluk, D.K. and comprised in:

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S.D. No.	Kissam	Extent (Acre)	Assessment Rs.
104/1A	Punja	0.88 acre	0.88
104/2A	Thari	1.80 acres	7.38
104/1B	Converted	0.05 acre
202/2	Punja	1.33 acres	0.54
203/2	Punja	1.23 acres	0.37
94/7	Thari	0.48 acre	3.13
197/2	Bagaitu	0.41 acre	1.28

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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99/2	Punja	3.05 acre	2.92
100/1A	Thari	0.38 acre	2.48
100/1b	Thari	0.20 acre	1.31
100/2	Bagaitu	0.23 acre	0.72
100/3	Thari	0.18 acre	1.17
100/7	Thari	0.78 acre	5.08
100/8A	Thari	0.21 acre	1.36
101/4A	Thari	0.74 acre	1.29
102/1B	Punja	1.20 acres	0.36
102/2	Bagaitu	0.06 acre	0.19
103/1A	Bagaitu	0.94 acre	7.52
104/9	Thari	0.84 acre	6.72
121/2	Punja	0.24 acre	0.08
104/10	Thari	0.82 acre	6.72
100/8B	Thari	0.29 acre	1.88

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This property and all other appurtenance there of including right of Road, Water right and other easementary rights which also containing 2 residential houses, etc.,

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Immovable properties situated in Jalsur Village, Sullia Taluk, D.K. and Comprised in:

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S.D. No.	Kissam	Extent (Acre)	Assessment (Rs.)
352/2	Punja	3.98 acres (as per RTC)	1.58
27/3DP2	Thari	0.67 acre	4.36
24/1	Punja	0.19 acre	0.16
26/4	Punja	0.06 acre	0.05
10/2E	Punja	2.15 acres	0.86
352/3P1	Punja	0.29 acres	0.12
11/1E	Punja	2.34 acres	0.94
351/3DP1	Punja	2.10 acres	0.84
27/3C1	Punja	4.30 acres	27.99
10/2F	Punja	2.25 acres	0.90

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This property and all other appurtenants thereof including right of Road, Water right and other easementary rights.

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6 - NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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C SCHEDULE

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1. Mahindra Jeep bearing KA-21-M-939 standing the name of the Di.

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2. Pump sets 5 in Nos.

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3. Copper and brass house hold vessels and utensils.

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'D' SCHEDULE

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Immovable properties situated in Puttur Kasba Village, Puttur Taluk, D.K. and comprised in:

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S.D. No.	Kissam	Extent (Acre)	Assessment (Rs.)
252/1A2A(P2) (old S.No.252/1A2AP7)	Kuski	0.31 acre	0.02

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3. Dismissal of the suit was questioned before the

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First Appellate Court in RA No.5006/2020. Learned Judge

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in the First Appellate Court after securing the records, reappreciated the factual and legal aspects of the matter and dismissed the appeal holding that defendants were successful in establishing that there was a previous partition which was registered and defendant No.2 being

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the father of the appellants herein, was a party to such a registered partition deed.

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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Being further aggrieved by the same, plaintiffs

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have filed the present appeal on the following grounds and have raised following substantial questions of law:

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GROUNDS

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The impugned Judgments and Decree are not sustainable either at law or on points of facts. The same are illegal and liable to be set aside.

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The Appellants submit the courts below have not properly appreciated the oral and documentary evidence and the findings are opposed to weight of evidence and probabilities of the case. The courts below have not applied its mind to the contention of the appellants and have erroneously dismissed the suit.

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It is submitted that as admitted by D.W.1 D schedule property has not been partitioned and it is liable to be partitioned amongst the joint family members. When such is the case the court below committed serious error in dismissing the suit in respect of D schedule property also.

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It is submitted that from the evidence on record it is clear that the properties are not being properly

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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managed by the Defendants including the 2nd Defendant and huge loans are being obtained by mortgaging the family properties, which prejudicial to the interest of the minor plaintiffs. In the cross examination of P.W.1 the Defendants have suggested that their father is not properly looking after the family and that he is in the habit of drinking alcohol and ill-treating family members. in fact, this suggestion of the defendants strengthens the case of the plaintiffs that interest of the minors are not protected and properties are being mismanaged.

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The Appellant submits in order to proof the alleged partition deed dated 22.01.2005, the defendants have not examined any of the attesting witnesses to the said documents. further there is no equitable partition of the family properties under the said document. The plaintiffs were of tender aged minors at the point of item and the 2^nd defendant has failed to protect their interest. Hence, the court below should have ordered for partition of the suit schedule properties as prayed.

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Without prejudice to the contentions already raised, the Appellants submit that the courts below have failed to understand the scope of the suit filed by the Appellants. The Appellants are

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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claiming their 2 / 15^th share in the suit schedule properties out of the 1 / 5^th share which their father 2nd Defendant is entitled to. If the courts below come to the conclusion that their father 2^nd Defendant has already been granted 1 / 5^th share in the suit properties as per the alleged registered partitioned deed dated 22.01.2005, the plaintiffs are entitled for 2 / 15^th share in the 1 /5^th share allotted to their father under the said partition deed. The courts below had all powers to mould the relief accordingly. This aspect of the matter has been overlooked by both the courts below.

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Even otherwise the impugned judgment is illegal and suffers from serious legal and factual infirmities. Therefore, the same is liable to be set aside.

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SUBSTANTIAL QUESTIONS OF LAW

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a) Whether the courts below have justified in dismissing the suit as against plaint D schedule property, when it is not partitioned and admittedly liable for partition?

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b) Whether the courts below are justified in dismissing the suit when the minor plaintiffs has established that the family properties are being

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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mismanaged and there is no equitable partition of the family properties and that interest of the minor plaintiffs are not protected?

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c) Assuming that registered partition deed dated 22.01.2005 is valid and correct, whether the courts below are justified in dismissing the suit without granting their share in the share allotted to the 2nd Defendant under the said document by moulding the relief?

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d) Whether the appreciation of oral and documentary evidence by the courts below is perverse, arbitrary?

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Learned counsel for the appellants reiterating

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the grounds urged in the appeal memorandum vehemently contended that in the plaint paragraph No.4 itself, plaintiffs have specifically stated that there was a bogus registered partition deed and defendant No.2 being their father, was tricked to sign the registered partition deed and ‘B’ schedule property in the suit is not a part of said partition. Therefore, plaintiffs are entitled to maintain the suit in respect of all the suit properties and sought for

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HC-KAR

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admitting the appeal on the aforesaid substantial questions of law.

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Per contra, learned counsel for respondent Nos.1 and 6 supports the impugned judgments.

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He would further contend that father of the plaintiffs being defendant No.2, in his lifetime, did not challenge the registered partition deed. He conveniently remained ex-parte before the Trial Court as well as before the First Appellate Court which shows that there is an active collusion between the plaintiffs and defendant No.2 only with an intention to grab some more properties despite there is a registered partition deed and therefore, sought for dismissal of the appeal.

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Having heard the parties in detail, this Court

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perused the material on record meticulously.

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Admittedly, the plaintiffs being the children of defendant No.2, does not possess any independent right to maintain the suit during the lifetime of his father who is

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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a party to the registered partition deed dated 22.01.2005. The suit is filed on 27.09.2014.

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Defendant No.2 is the best person to contend before the Court that registered partition deed got executed by playing fraud and therefore, it is the bogus document. Defendant No.2 being the father of the plaintiffs and party to the registered partition deed; did not choose to challenge the same and continued to enjoy the property that was allotted to him under the said registered partition deed. It is not the case of the plaintiff either that his father did not get any share in the registered partition deed.

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Revenue entries have been mutated pursuant to the said registered partition deed and parties are enjoying the properties as per the registered partition deed.

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When the father of the plaintiffs himself did not challenge the registered partition deed, plaintiffs filing a

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NC: 2025:KHC:31627 RSA No. 1719 of 2022

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HC-KAR

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suit for partition contending that registered partition deed

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is a bogus document has been rightly rejected by both the Courts.

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Under such circumstances, this Court does not find any merit in any one of the substantial questions of law raised above for admitting the appeal for further consideration.

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Accordingly, the following:

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ORDER

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Appeal is meritless and hereby dismissed .

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 54

Vidyesh I K v. Smt. I C Pushpavathi

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Vidyesh I K v. Smt. I C Pushpavathi

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