Sathish Vs Roopesh

ROOPESH AGED ABOUT 40 YEARS, S/O LATE MARIBASAPPA, Digitally signed ARALIKERE VILLAGE, by DEVIKA M Location: HIGH KASABA HOBLI, COURT OF TURUVEKERE TALUK, KARNATAKA TUMKUR DISTRICT.

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LALITHAMMA AGED BOUT 73 YEARS, W/O LATE MARIBASAPPA, ARALIKERE VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT.

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…RESPONDENTS

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(BY SRI. SUNIL KUMAR H., ADVOCATE FOR R1; SRI. NAVEEN KUMAR K.N., ADVOCATE FOR R2)

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NC: 2025:KHC:49626 RSA No. 640 of 2024

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HC-KAR

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.03.2023 PASSED IN RA NO.10032/2018 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, TIPTUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.07.2018 PASSED IN OS NO.1/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, TURUVEKERE.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the

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appellant’s counsel and also the counsel appearing for the respondents.

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The factual matrix of case of plaintiff before the

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Trial Court that Suit ‘A’ and ‘B’ schedule properties are ancestral and joint family properties of plaintiff and defendants. The defendant No.2 appeared and filed written statement contending that there was a partition dated 25.12.1999 and allowed the parties to lead evidence and plaintiff also led evidence before the Court also examined one witness as P.W.2 and got marked document Ex.P.1 to

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3 - NC: 2025:KHC:49626 RSA No. 640 of 2024

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HC-KAR

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Ex.P.20. On the other hand, defendant No.2 examined as D.W.1 and also examined one witness as D.W.2 and got marked document Ex.D.1 to Ex.D.24. The Trial Court having considered both oral and documentary evidence, comes to the conclusion that suit schedule property i.e., ‘A’ and ‘B’ properties are ancestral and joint family properties and granted 4/9^th share and contention of the defendant No.2 that already there was a partition was not accepted and the same is answered as negative by answering the Issue No.2.

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Being aggrieved by the said judgment and decree, an appeal is filed by defendant No.2 in R.A.No.10032/2018 before the First Appellate Court. The Appellate Court having re-assessed the material available on record and considering the grounds which have been urged in the appeal memo, answered the points that suit schedule properties are the joint family properties and though the defense was taken that there was already a partition on 25.12.1999 and though the defendant No.2,

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NC: 2025:KHC:49626 RSA No. 640 of 2024

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HC-KAR

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has taken the said defense that there was an unregistered

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partition deed, but he did not prove the same before the Trial Court as well as the First Appellate Court and fails to prove that there was a partition between himself, plaintiff and their father in respect of ‘A’ schedule properties. It is also his contention that Item No.1 was purchased by mortgaging the properties allotted to his share and item No.2 is purchased out of his own earning. The defendant No.2 has failed to prove that there was a partition and share was allotted to him and nothing is placed on record. Hence, the contention of the appellant was not accepted and confirmed the judgment of the Trial Court.

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Being aggrieved by the said judgment and decree, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant that both the Trial Court and First Appellate Court committed an error in not considering the previous partition which is not challenged by the respondent herein and also the very suit itself is not maintainable when there

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NC: 2025:KHC:49626 RSA No. 640 of 2024

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HC-KAR

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was a partition earlier and also both the Courts have committed an error and not give any credence to the revenue entries which is standing in the name of the appellant. Hence, this Court has to admit and frame substantive question of law.

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Per Contra, the counsel appearing for the respondents submits that though specific defense was taken that there was already a partition and not produced any document and to evidence the said fact also, nothing is placed on record, both the Trial Court and First Appellate Court taken note of the same. Hence, no ground is made out to admit and frame any substantive question of law.

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Having heard the learned counsel for the appellant and also the learned counsel for the respondents, no dispute with regard to the relationship between the parties and also with regard to the nature of the properties and only contention was taken by the appellant before the Trial Court that there was already a

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HC-KAR

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partition in the year 1999 and in order to substantiate the same, no document is placed before the Court either before the Trial Court or before the First Appellate Court. The Appellate Court having re-assessed the material on record, particularly in paragraph Nos.12 and 13 comes to the conclusion that in order to prove the factum that earlier partition deed dated 25.12.1999, not produced any document before the Trial Court and also before the First Appellate Court and even with regard to there was a partition between himself, plaintiff and their father in respect of the ‘A’ schedule property also, nothing is placed on record. Though claims that Item No.2 was purchased by himself and Item No.1 was also mortgaged and the same was allotted to his share. In order to substantiate the same, nothing is placed on record and taking into note of both oral and documentary evidence placed on record, when the appellant fails to prove the same, not found any perversity in the finding of the Trial Court and also the First Appellate Court and specific defense which was taken

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