Dismissed¶¶87

Smt. Jayamma v. Sri H. Rameshappa

Karnataka HC9 Jul 2025RSA/855/2021

Case brief

AI extract

What is this about?

Karnataka HC Bengaluru; RSA No.855/2021 (PAR); H.P. Sandesh J.; decided 09-07-2025; NC: 2025:KHC:24985; partition suit (Davangere/Harihara); joint family vs self-acquired property (item Nos.2, 6, 7); alleged oral partition 12.04.1968; Order 2 Rule 2 CPC plea; earlier suit O.S.No.80/1987 dismissed for non-prosecution; D.W.1 evidence discarded for partial cross-examination; no documentary proof of independent income; no substantial question of law; second appeal dismissed; O.S.No.109/2006; R.A.No.89/2013.

What did the court decide?

The Order 2 Rule 2 CPC objection founded on the earlier suit fails: the earlier suit filed by the father (Hanumanthappa) was not adjudicated on merits and was dismissed for non-prosecution, so the submission that the present suit is barred cannot be accepted. ¶¶66

Smt. Jayamma Vs Sri H. Rameshappa — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶¶87

Issue for consideration

Whether the suit schedule properties are joint family properties in the joint possession and enjoyment of the parties, entitling the plaintiffs to partition. +4 more

¶¶40

Ratio / Principle

¶¶66

Key takeaways

The plea of an earlier oral partition (pleaded only by defendant No.1, allegedly on 12.04.1968) is rejected: it was not substantiated, D.W.1's evidence was not accepted as he did not complete cross-examination, and nothing on record shows the parties acted upon any such partition.ratio¶¶67
Item Nos.2, 6 and 7 cannot be held to be the self-acquired properties of defendant Nos.1, 3 and 4: there was no partition prior to their purchase, no documentary evidence of an independent source of income was produced (sale deeds and affidavit assertions alone being insufficient, D.W.1 not having been fully cross-examined), and both courts below rightly rejected the self-acquisition contention.ratio¶¶78

Detailed headnote1 paragraphs

Regular Second Appeal (PAR) under Section 100 CPC against concurrent judgments: the Trial Court (O.S.No.109/2006, Senior Civil Judge, Harihara, decree dated 08.10.2013) held the suit schedule properties to be ancestral/joint family properties, rejected the self-acquisition defence of defendant Nos.1, 3 and 4, and decreed partition with 1/3rd share each to the plaintiffs and to defendant Nos.1 and 2; the First Appellate Court (R.A.No.89/2013, Principal District and Sessions Judge, Davanagere, judgment dated 06.03.2021) confirmed it. The High Court (H.P. Sandesh, J.) rejected (i) the Order 2 Rule 2 CPC plea resting on the earlier suit by Hanumanthappa (referred to as O.S.No.80/1987), which was dismissed for non-prosecution without adjudication on merits; (ii) the plea of oral partition dated 12.04.1968, which was unsubstantiated, unsupported by any conduct of the parties, and urged only through D.W.1 whose evidence was discarded for incomplete cross-examination; and (iii) the claim that item Nos.2, 6 and 7 were self-acquisitions of defendant Nos.1, 3 and 4, there being no prior partition, no established independent income, and no documentary evidence of an independent source of funds. Finding no error in the courts below and no substantive question of law, the second appeal was dismissed.

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1 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.855 OF 2021 (PAR)

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BETWEEN:

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SMT. JAYAMMA AGED ABOUT 57 YEARS, W/O NAGESHAPPA, D/O LATE SRI. KARIYAPPA, R/AT HALIVANA VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT-577530.

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SMT. CHANDRAMMA AGED ABOUT 55 YEARS, W/O KARIBASAPPA, R/AT HALIVANA VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT-577530.

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SMT. HALAMMA AGED ABOUT 59 YEARS, W/O LATE DILLYAPPA, R/AT KUMBALUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577219.

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SRI GOVINDA RAJU AGED ABOUT 27 YEARS, S/O LATE DILLYAPPA, R/AT KUMBALUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT 577219.

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2 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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SRI. K.S. BEERAPPA AGED ABOUT 51 YEARS, S/O K.S.KARIYAPPA, R/AT KUMBALUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577219.

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…APPELLANTS

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(BY SRI. NARASIMHA PRASAD S.D., ADVOCATE)

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AND:

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SRI. H. RAMESHAPPA AGED ABOUT 49 YEARS, S/O. LATE HANUMANTHAPPA, R/AT KUMBALUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577219.

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SRI. H. HALASIDDAPPA AGED ABOUT 47 YEARS, S/O LATE HANUMANTHAPPA, R/AT KUMBALUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577219.

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SRI. H. NAGARAJA AGED ABOUT 41 YEARS, S/O. LATE HANUMANTHAPPA, R/AT KUMBALUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577219.

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SMT. HANUMAKKA AGED ABOUT 77 YEARS, W/O LATE HANUMANTHAPPA, R/AT KUMBALUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577219.

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3 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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SMT. DEVIRAMMA AGED ABOUT 52 YEARS, W/O MANJAPPA, D/O. LATE HANUMANTHAPPA, R/AT SINGATAGERI VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT 577217.

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SMT. GEETHAMMA AGED ABOUT 45 YEARS, W/O. JAYAPPA, D/O. LATE HANUMANTHAPPA, R/AT MATHI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577525.

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SMT. LATHAMMA AGED ABOUT 43 YEARS, W/O HANUMANTHAPPA, D/O. LATE HANUMNTHAPPA, R/AT KAMALAPURA VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT-577516.

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…RESPONDENTS

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(BY SRI. D.P.MAHESH, ADVOCATE FOR R1 TO R4, R6 AND R7; R5 - IS DEAD)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.03.2021 PASSED IN R.A.NO.89/2013 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.10.2013 PASSED IN O.S.NO.109/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHARA.

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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:24985 RSA No. 855 of 2021

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HC-KAR

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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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learned counsel for the appellants and the learned counsel for the respondents.

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This second appeal is filed against the concurrent finding. The factual matrix of the case of the plaintiff before the Trial Court that suit schedule properties belongs to the joint family and they are in joint possession and enjoyment of the suit schedule properties along with the defendants. The defendants appeared and filed a written statement and particularly defendant No.1 took the contention that there was an oral partition on 12.04.1968 and defendant No.1 also took the contention that present suit is not maintainable in view of the decision in O.S.No.80/1987 and also contend that suit is hit by Order 2 Rule 2 of CPC and further contention was taken by the defendant No.1 that item Nos.2, 6, 7 and 8 are his exclusive properties and defendant No.3 also took the

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5 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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specific defense that item No.7 is his self-acquired property and defendant No.4 took the specific defense that item No.2 is his self-acquired property. The Trial Court allowed the parties to lead evidence and plaintiff No.2 has been examined as P.W.1 and also examined other witnesses as P.W.2 to P.W.4 and got marked documents Ex.P.1 to Ex.P.8, but P.W.2 not subjected for cross examination and therefore evidence of P.W.2 was discarded. The P.W.3 and P.W.4 subjected themselves for cross examination by the defendant Nos.3 and 4 after the addition of defendant Nos.3 and 4. On the other hand, the defendant No.1 and defendant No.4 have been examined as D.W.1 and D.W.2 respectively and also examined two witnesses as D.W.3 and D.W.4 and got marked documents Ex.D.1 to Ex.D.21, but D.W.1 subjected himself for cross examination on 21.07.2012 and subsequently he did not appear and hence his evidence was not considered.

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The Trial Court having considered both oral and

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documentary evidence comes to the conclusion that

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6 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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properties are the ancestral properties by answering issue No.1 as affirmative in coming to the conclusion that the suit schedule properties are the joint family properties and though took the defence that item Nos.2, 6, 7 and 8 are the self acquired properties of defendants as contended by defendant No.1, defendant No.3 and defendant No.4 and the same was answered as negative and granted the relief of partition in respect of the suit schedule properties coming to the conclusion that entitled for 1/3^rd share in all the suit schedule properties and defendant Nos.1 and 2 are also having 1/3^rd share each in the suit schedule properties.

¶49

Being aggrieved by the finding of the Trial Court, an appeal is filed in R.A.No.89/2013 before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal as well as the respective submissions of both the counsels, formulated the point whether the Trial Court erred in answering the point No.1 with regard to Order 2 Rule 2 of CPC is not

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7 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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applicable and also whether the Trial Court committed an

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error in coming to the conclusion that there was no evidence of oral partition between Hanumanthappa and defendant No.1 and whether the Trial Court committed an error in answering the other issues in respect of the specific contention that item No.2, 6 and 7 are the exclusive properties of defendant Nos.1, 3 and 4 and whether it requires interference of this Court.

¶54

The First Appellate Court also re-assessed both oral and documentary evidence placed on record, answered all the points for consideration as negative and confirmed the judgment of Trial Court and hence the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant before this Court is that both the Courts have failed to take note of the fact that item Nos.2, 6 and 7 of the suit schedule properties are also the joint family properties instead of sale deeds are produced before the Trial Court that the same having been purchased by

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8 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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defendant Nos.1, 2 and 3. It is also the contention of the appellants’ counsel that the conclusion of both the Courts that the respondents are in joint possession and enjoyment of the suit schedule property is erroneous and also not justified in ordering for partition in respect of item Nos.1 to 8 schedule properties although the defendant Nos.1, 3 to 5 have produced Ex.D.1 and Ex.D2 which reflect that properties are stands in the name of respective parties and hence, this Court has to admit and frame substantive question of law.

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The counsel appearing to the respondents would contend that in order to prove the factum of earlier partition, no document is placed before the Court and only defence was taken and mere taking of defence is not enough. The counsel also vehemently contend that when the family properties are in existence and the same has not been disputed and if any other properties are purchased by them and the same is purchased out of joint nucleus and not placed any record before the Court that

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9 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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they are having other income other than the joint nucleus

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of the property and hence their contention cannot be accepted that those properties are self-acquired properties and both the Courts have taken note of the said fact into consideration and answered the relevant issues as negative that the defendants have not proved the same that those properties are the self acquired properties.

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Having heard the appellants’ counsel and also the counsel appearing for the respondents, it is not in dispute that they are the legal heirs of Siddappa and it is also not in dispute that plaintiffs are the children of Hanumanthappa who is son of Siddappa. No doubt the Hanumanthappa earlier had filed the suit and also no dispute that he passed away during the pendency of the suit and also the plaintiffs were brought on record as legal heirs in the earlier suit. But, the same was also not adjudicated on merits. The very contention of the counsel appearing to the appellant that Order 2 Rule 2 of CPC was not invoked by the Trial Court and First Appellate Court

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10 - NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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and the very submission cannot be accepted and earlier suit was filed by the father, but the same was not adjudicated on merits and the same was dismissed for non prosecution.

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The other contention of the appellants’ counsel that specifically pleaded by defendant No.1, defendant No.3 and defendant No.4 that item No.2, 6 and 7 are the self acquired properties of the respective defendants. It is emerged during the course of evidence that though D.W.1 took the specific defence regarding oral partition and he was subjected partly for cross examination and thereafter he did not subject for cross examination and hence his evidence has not been accepted and defendant No.1 only pleaded regarding earlier oral partition and the same has not been substantiated. In order to prove the factum of earlier oral partition is concerned, parties have not acted upon and nothing is placed on record that parties have acted upon. Hence, the very contention that earlier there was a partition also cannot be accepted and the same was

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11 -

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NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

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also taken note of by both the Trial Court and Appellate

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Court.

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It is also important to note that

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Hanumanthappa earlier had filed the suit and this Court already observed that the same has not reached its finality. But, the fact that family was having other family properties that is item Nos.1, 3 to 5 and 8 including the house property and also the agricultural land property bearing Sy.No.2/1, Sy.No.25/1 and also Sy.No.51/2B and the same is not disputed that those properties are belongs to the family, but only contention was taken that they have acquired the item Nos.2, 6 and 7 properties and they are the independent properties. The fact that there was no any partition prior to purchasing of this property and though they have produced the sale deed and having independent income to purchase those properties also not established by defendant No.1 since he was not subjected to cross examination in full and though other defendants examined and nothing is placed on record that they were

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12 -

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NC: 2025:KHC:24985 RSA No. 855 of 2021

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HC-KAR

¶78

having independent income to purchase those property and hence both the Trial Court and Appellate Court not accepted their contention. When such being the case, in the absence of documentary evidence that they were having independent source of income to purchase the property, question of coming to the conclusion that those properties are their self acquired properties also cannot be accepted. Both Trial Court as well as the Appellate Court re-assessed the material available on record and the fact that all the joint family properties are standing in the name of defendant No.1 and defendants have not produced any separate income to purchase the item No.2 in the name of defendant No.4 also taken note of by the First Appellate Court and discussed in detail the evidence of witnesses including D.W.1, D.W.2, D.W.3 and except stating in the affidavit that they have purchased the property out of their independent income, nothing is placed on record and I do not find any error committed by the Trial Court and Appellate Court in granting the relief

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NC: 2025:KHC:24985 RSA No. 855 of 2021

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13 -

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HC-KAR

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and confirming the same. Hence, I do not find any ground

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to admit and frame any substantive question of law.

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In view of the discussions made above, I pass

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the following:

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ORDER

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Second Appeal is dismissed .

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Sd/(H.P.SANDESH) JUDGE

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RHS

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List No.: 1 Sl No.: 50

Issues for consideration

5 issues framed by the court

AI extract

1.
Whether the suit schedule properties are joint family properties in the joint possession and enjoyment of the parties, entitling the plaintiffs to partition.¶¶40
2.
Whether item Nos.2, 6 and 7 of the suit schedule properties are the exclusive/self-acquired properties of defendant Nos.1, 3 and 4 respectively, or joint family properties liable to partition.¶¶53
The court held
Item Nos.2, 6 and 7 cannot be held to be the self-acquired properties of defendant Nos.1, 3 and 4: there was no partition prior to their purchase, no documentary evidence of an independent source of income was produced (sale deeds and affidavit assertions alone being insufficient, D.W.1 not having been fully cross-examined), and both courts below rightly rejected the self-acquisition contention.ratio¶¶78
3.
Whether there was an oral partition (contended to have taken place on 12.04.1968) between Hanumanthappa and defendant No.1.¶¶53
The court held
The plea of an earlier oral partition (pleaded only by defendant No.1, allegedly on 12.04.1968) is rejected: it was not substantiated, D.W.1's evidence was not accepted as he did not complete cross-examination, and nothing on record shows the parties acted upon any such partition.ratio¶¶67
4.
Whether the present suit is maintainable, given defendant No.1's contention that it is barred under Order 2 Rule 2 of CPC and is not maintainable in view of the earlier suit O.S.No.80/1987.¶¶40
The court held
The Order 2 Rule 2 CPC objection founded on the earlier suit fails: the earlier suit filed by the father (Hanumanthappa) was not adjudicated on merits and was dismissed for non-prosecution, so the submission that the present suit is barred cannot be accepted.ratio¶¶66
5.
Whether the second appeal ought to be admitted and any substantive question of law framed.¶¶83
The court held
No error is found in the Trial Court and the First Appellate Court in granting the relief of partition and confirming it; the concurrent findings stand.ratio¶¶78

Smt. Jayamma v. Sri H. Rameshappa

Case brief

What is this about?

What did the court decide?

Smt. Jayamma v. Sri H. Rameshappa

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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