DUNDAYYA S/O SHIVALINGAYYA HIREMATH @ AGNIMATH vs SHANTAYYA S/O. SHIVALINGAYYA HIREMATH @ AGNIMATH

- 1 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015



IN THE HIGH COURT OF KARNATAKA



KALABURAGI BENCH

TH
DATED THIS THE 16 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO. 200278 OF 2015 (PAR)


BETWEEN:

1. DUNDAYYA S/O. SHIVALINGAYYA HIREMATH,
DECEASED BY LRS:

1.1) PARVATAMMA
W/O DUNDAYYA HIREMATH @ AGNIMATH,
SINCE DEAD, LRS. ARE ALREADY ON RECORD
AS APPELLANT NOS.1.2 TO 1.5

1.2) PRABHULINGAYYA
S/O DUNDAYYA HIREMATH @ AGNIMATH,
AGE: 45 YEARS, R/O. AGNI,
TQ. SURPUR, DIST. YADGIR.

1.3) BASAYYA
S/O DUNDAYYA HIREMATH @ AGNIMATH,
AGE: 35 YEARS, R/O. AGNI,
TQ. SURPUR, DIST. YADGIR.

1.4) SHIVALINGAYYA
S/O DUNDAYYA HIREMATH @ AGNIMATH,
AGE:30 YEARS, R/O. AGNI,
TQ. SURPUR, DIST. YADGIR.

1.5) NEELAMMA
W/O REVANSIDDAYYA HIREMATH
AGE:40 YEARS, OCC: HOUSEHOLD,
R/O. BASTAL, TQ. HUNASAGI, DIST. RAICHUR.
…APPELLANTS
(BY SRI VIGHNESHWAR SHASTRY, SENIOR COUNSEL FOR
SRI. R. J. BHUSARE, ADVOCATE)









Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA

- 2 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


AND:





1.1)
SHANTAYYA
S/O SHIVALINGAYYA HIREMATH @ AGNIMATH,
DECEASED BY LRS:

SIDRAMAWWA W/O SHANTAYYA,
AGE: 75 YEARS OCC: HOUSEHOLD,
R/O. BANDEAPPANAHALLI,
TQ. TALIKOTI, DIST. VIJAYAPURA.

1.2) RACHAMMA
W/O PRABHUDEV JAHAGIRDAR,
AGE: 50 YEARS, OCC: HOUSEHOLD (DAUGHTER)
R/O. BANDEAPPANAHALLI, TQ.TALIKOTI,
DIST. VIJAYAPURA.

1.3) SIDDABASAYYA S/O SHANTAYYA,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. AGNI, TQ. SHORAPUR, DIST. YADGIR.

1.4) MANJUNATH S/O SHANTAYYA,
AGE: 35 YEARS OCC: AGRICULTURE,
R/O. AGNI, TQ. SHORAPUR, DIST. YADGIR.

1.5) CHANDRASHEKHAR S/O SHANTAYYA,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O. AGNI, TQ. SHORAPUR, DIST. YADGIR.

1.6) SHIVALINGAYYA S/O SHANTAYYA,
AGE: 30 YEARS OCC: AGRICULTURE,
R/O. AGNI, TQ. SHORAPUR, DIST. YADGIR.
…RESPONDENTS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE
FOR R1 (1) TO R1(6))

THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THIS APPEAL WITH COST AND SET ASIDE THE
JUDGMENT AND DECREE IN R.A.NO.122 OF 2012 ON THE FILE OF I-
ADDL. DIST. JUDGE VIJAYAPUR DATED 14-07-2015 AND CONFIRM
THE JUDGMENT AND DECREE OF THE LEARNED SENIOR CIVIL JUDGE
AND JMFC., MUDDEBIHAL, DATED 05-04-2012 IN O.S.NO.7 OF 2011
(OLD OS NO. 5 OF 2009) AND CONSEQUENTLY DISMISS THE SUIT
OF THE PLAINTIFF.

- 3 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015



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

CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI

ORAL JUDGMENT

1. This appeal is filed by the appellant challenging the
judgment and decree dated 14.07.2015 passed in
R.A.No.122 of 2012 by the learned I-Additional
District Judge, Vijayapura.

2. For the sake of convenience, parties are referred to
based on their ranking before the Trial Court.
Appellants are the legal representatives of the
defendant and respondents are the legal
representatives of the plaintiff.

3. Plaintiff filed a suit for partition and separate
possession in respect of land bearing R.S.No.404/1B
measuring 06 acres 18 guntas situated at Talikoti,
Muddebihal Taluk. The plaintiff and defendant are the
siblings and they got partitioned their properties
situated at Athani village long ago. Since the suit

- 4 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


schedule property was under litigation, the same was
not partitioned. After the litigation attaining finality,
the plaintiff requested the defendant to effect
partition in the land bearing Sy.No.404/1B. The
defendant refused to effect the partition. Hence, the
cause of action arose for the plaintiff to file a suit for
partition and separate possession.

4. The defendant filed a written statement denying the
averments made in the plaint and contended that by
way of a family arrangement, all the properties of
the joint family have been divided between the
plaintiff and the defendant. In the said family
arrangement, the plaintiff opted to give up his share
in the suit schedule property since he was not willing
to spend for litigation. The defendant contested
several rounds of litigation with one Channappa
Nagoor and all the litigation ended in favour of the
defendant. Therefore, the defendant is in exclusive
possession of the suit property. It is contended that

- 5 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


the suit is bad for non-joinder of necessary parties as
female members of the family are not arrayed as
parties to the suit. Hence, it is contended that the
suit filed by the plaintiff is not maintainable and
there is no cause of action for the plaintiff to file a
suit. On these grounds, he prayed to dismiss the
suit.

5. The Trial Court, based on the rival pleadings of the
parties framed the following issues:
“Issue No-1. Whether the plaintiff proves
that the suit properties are ancestral
properties of himself and defendant?
Issue No-2. Whether the defendant proves
that the plaintiff has no right in the suit
properties?
Issue No-3. Whether the defendant proves
that suit is not maintainable ?
Issue No-4. Whether the defendant proves
that the suit is bad for non-joinder of
necessary party ?
Issue No-5. Whether the plaintiff is
entitled for the relief claimed?

- 6 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


Issue No-6. what order or decree?”


6. In order to substantiate the case, the plaintiff
examined himself as PW1, examined one witness as
PW2 and marked 11 documents as Exs.P1 to P11. In
rebuttal, the defendant examined himself as DW1
and marked 06 documents as Exs.D1 to D6.

7. The Trial Court, after recording the evidence, hearing
both sides, after assessing the verbal and
documentary evidence, answered issue Nos.1 and 2
in the Affirmative issue Nos.3 to 5 in the Negative
and issue No.6 as per the final order and the suit of
the plaintiff was dismissed by judgment dated
05.04.2012.

8. The plaintiff aggrieved by the dismissal of the suit in
O.S.No.7 of 2011 preferred an appeal in R.A.No.122
of 2012 on the file of learned I-Additional District
Judge, Vijayapura.

- 7 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015



9. The First Appellate Court, after hearing the learned
counsel for the parties, framed the following points
for consideration:
1) Whether the appellant/plaintiff has
made out sufficient grounds to condone
the delay of 2 months 15 days in
preferring this appeal by allowing
I.A.No.I?
2) Whether the lower Court justified that
Ex.D-4 is a 30 years old document based
on oral and documentary evidence in
dismissing the suit of the plaintiff?”


10. The First Appellate Court, after re-appreciating the
entire evidence on record answered point No.1 in the
Affirmative, point No.2 in the Negative and allowed
the appeal by judgment dated 14.07.2015 and set
aside the judgment and decree passed in O.S.No.7 of
2011 and consequently, decreed the suit of the
plaintiff. It is declared that both plaintiff and

- 8 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


defendant are entitled to half share each in the suit
land and both plaintiff and defendant by metes and
bounds effect partition in the suit land as per law
accordingly.

11. The defendant aggrieved by the judgment and
decree dated 14.07.2015 passed in R.A.No.122 of
2012 by the learned I-Additional District Judge,
Vijayapura, filed this Regular Second Appeal.

12. Heard Sri Vighneshwar Shastry, learned Senior
Counsel appearing for Sri R.J.Bhusare, learned
counsel for the appellants/defendant as well as
Sri Sanjeevkumar C. Patil, for Sri Shivanand Patil,
learned counsel for the respondents/plaintiff.

13. Learned Senior Counsel appearing for the
appellants/defendant submits that the suit filed by
the plaintiff is not maintainable for non-joinder of
necessary parties. He submits that the Trial Court
was justified in dismissing the suit as not

- 9 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


maintainable on the ground of non-joinder of
necessary parties. He submits that there is partition
effected in between the plaintiff and the defendant
and in the said partition, the suit schedule property
has fallen to the share of the defendant and the
defendant is the owner and in exclusive possession
of the suit schedule property. To buttress his
arguments, he has placed reliance on the judgment
of the Hon'ble Apex Court in the case of P.
Anjanappa (D) By LRs., vs. A.P.Nanjundappa
1
and Others, Kanakarathanammal vs.
2
Loganatha Mudaliar and another
K.G.Shivalingappa (Dead) By LRs., and others
3
vs. G.S.Eswarappa and others , M.
Venkataramana Hebbar (Dead) By LRs., vs. M.

1

Civil Appeal No.3934/2006 disposed of on 06.11.2025
2
1963 SCC Online SC 154,
3
(2004)12 SCC 189

- 10 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


4
Rajagopal Hebbar and others and Thulasidhara
5
and another vs. Narayanappa and others .

14. He also submits that plaintiff has relinquished his
right in favour of defendant by executing Ex.D4. He
also submits that the defendant has spent a huge
amount towards the litigation expenses and he had
developed the land. Hence, on these grounds, he
prays to allow the appeal.
Per contra
15. , learned counsel for the plaintiff submit
that the defendant has taken a defence in the written
statement that the suit is not maintainable for non-
joinder of necessary parties. During the pendency of
the suit, the plaintiff has filed an application to
implead the sisters in a suit. He submits that the
defendant has objected the application and the said
application came to be rejected by the Trial Court. He
submits that the defendant cannot raise the

4
(2007)6 SCC 401
5

(2019)6 SCC 409

- 11 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


argument that the suit is not maintainable for non-
joinder of necessary parties. He also submits that
Ex.D4 does not disclose that the suit schedule
property fell to the share of defendant and there is
no reference about the suit schedule property in
Ex.D4. He submits that there is no dispute with
regard to the relationship between the parties to the
petition and nature of suit schedule property. When
the defendant has taken a plea that there was a prior
partition in respect of the suit schedule property, the
burden is on the defendant to prove that there was a
prior partition. He submits that the defendant except
examining himself has not examined any witnesses
to demonstrate that the suit schedule property fell to
the share of defendant. In view of the contention of
the defendant that the suit schedule property fell to
the share of the defendant under Ex.D4, itself is
sufficient to hold that the suit schedule property is
the ancestral property of the plaintiff and defendant.

- 12 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


He submits that no partition is effected between the
plaintiff and the defendant. The First Appellate Court
has rightly decreed the suit. He also submits that the
judgments relied upon by the learned Senior Counsel
for the defendants are not applicable to the case on
hand. Hence, on these grounds, he prays to dismiss
the appeal.

16. This Court by an order dated 21.09.2015 admitted
the appeal to consider the following substantial
question of law:
“ Whether the judgment of the First Appellate
Court is perverse and illegal for not bringing
on record the sisters of the appellant and
respondent since they are necessary parties in
a suit for partition and separate possession?”
Reg. Substantial Question of law:

17. The plaintiff filed a suit for partition and separate
possession contending that the suit schedule

- 13 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


property is the ancestral property of the plaintiff and
defendant. There was a prior partition between the
plaintiff and the defendant in respect of non-suit
properties. It is contended that there was no
partition in respect of the suit schedule property on
the ground that the suit schedule property was under
a litigation when partition was effected between the
plaintiff and the defendant in the year 1968. The
defendant has contended that in the said partition
effected in 1968, the plaintiff has relinquished his
right in the suit schedule property under Ex.D4.
Admittedly, Ex.D4 is an unregistered instrument. If
any right is to be transferred, it is to be transferred
by way of registration as per Section 17 of the Indian
Registration Act.

18. Further, the plaintiff to substantiate his case
examined himself as PW.1 and produced the
documents Ex.P1 to P11 and the plaintiff also
examined one witness as PW.2 who has also deposed

- 14 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


that the plaintiff and defendants are the brothers and
the suit schedule property is an ancestral property
and there is no partition effected in respect of the
suit schedule property between the plaintiff and the
defendant and the said property is the ancestral
property and the plaintiff is entitled for share in the
suit schedule property. In rebuttal the defendant
examined himself as DW1 and he has reiterated the
written statement averments in the examination-in-
chief and he has deposed that the suit of the plaintiff
is not maintainable for non-joinder of necessary
parties and in order to prove that there was a
partition between the plaintiff and the defendant and
the plaintiff has given up his right in the suit
schedule property has produced Ex.D4 i.e., the
partition deed.

19. From the perusal of Ex.D4, there is no reference
about Sy.No.404/1B and further, there is no
reference in regard to relinquishment of right by the

- 15 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


plaintiff in favour of defendant in respect of
Sy.No.404/1B, in Ex.D4. The entire defence of the
defendant is based on Ex.D4 that the plaintiff has
relinquished his right in Ex.D4.

20. The defendant has also deposed that the suit is not
maintainable for non-joinder of necessary parties.
The plaintiff has filed an application to implead the
sisters as female members of the family. The said
application was opposed by the defendant by filing
the objections. The application came to be rejected
by the Trial Court. The Trial Court has recorded its
finding in para-18 which reads as follows:
“Though the defendant has took up a
contention that sisters have not been made as
a party to the proceedings, but he has not
adduced any specific evidence with regard to
that aspect, because when a specific defence
has been taken by the defendant the necessary
parties have not been impleaded in the suit, he
has to establish that fact by stating fact or by
giving evidence who are all the necessary

- 16 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


parties and who are daughters to be impleaded
as a party to the proceedings. On the contrary
one of the daughter has filed an application for
impleading her as a party. But defendant
strongly opposed and contended that the
daughters have no right in the property. And in
such being the case, as this is a property
partitioned earlier in the year 1968 itself
between brothers, and even after 33 years no
claim has been made by the daughters with
respect to the joint family property. I am of
the opinion that the daughters have consented
for the partition which was entered between
the coparcener, and at that point of time,
though they have no right in the property and
they have consented for dividing the property
between the brothers. In such an event, as
there is no specific evidence and no claim has
been made by the daughters for all these days
will certainly establish that, they have no any
right in the property or they consented for the
partition which has been effected between the
parties. Hence, I am of opinion that the
contention of the defendant that, the suit is not
maintainable is of no consequences and
defence of non-joinder of the necessary parties
is also of no consequence.”

- 17 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015



21. Admittedly, the defendant has not challenged the
observation made by the Trial Court in para-18 by
filing a cross-objection or cross-appeal. Admittedly, it
has attained finality. In view of the same, the
plaintiff has not arrayed the sisters as a party. The
said aspect was considered by the First Appellate
Court. Admittedly, plaintiff and defendant are the
brothers and the suit schedule property is the
ancestral property of the plaintiff and defendant and
no partition is effected between the plaintiff and the
defendant. The plaintiff is entitled for half share in
the suit schedule property. The First Appellate Court
has rightly passed the impugned judgment.

22. Though the learned Senior Counsel placed reliance
on the judgments referred to above, there is no
dispute in regard to the proposition of law laid down
by the Hon'ble Apex Court in regard to the non-
joinder of necessary parties. Admittedly, if the sister
of the plaintiff and defendant did not file an

- 18 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


application to come on record, then the decision
relied upon by the learned counsel for the defendant
would be applicable. But, admittedly, in the instant
case, the sister has filed an application for
impleading herself as a party and the defendant
himself has objected to the said application on the
ground that in 1968, daughters were not treated as
co-parceners and they were not entitled for a share
in the co-parcener property. Admittedly, Section 6 of
the Hindu Succession Act was amended by the
Karnataka in the year 1990 and the Union
Government has amended Section 6 of the Hindu
Succession Act, in the year 2005. Hence, the sisters
were neither necessary nor proper parties at the time
of partition effected in the year 1968. As per proviso
to subsection (1) of Section 6 of the Hindu
Succession (Amendment) Act, 2005, any partition or
testamentary disposition of property made before
20.12.2004, are required to be saved as earlier the

- 19 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015


daughters were not coparceners. The said ratio laid
down by the Hon'ble Apex Court in the case of Vinita
6
Sharma v. Rakesh Sharma .

23. In view of the above discussion, I answer substantial
question of law in the Negative and proceed to pass
the following:
ORDER

i. The Regular Second Appeal is
dismissed.

ii. The judgment and decree dated 14.07.2015
passed in R.A.No.122 of 2012 by the
learned I-Additional District Judge,
Vijayapura, is hereby confirmed.

iii. Learned counsel for the plaintiffs undertakes
to pay a sum of Rs.2,00,000/- towards the
litigation expenses to the defendants.

iv. Undertaking is placed on record.

6
AIR 2020 SC 3717

- 20 -
HC-KAR
NC: 2026:KHC-K:11457
RSA No. 200278 of 2015


CNR: KAHC030025212015



v. The plaintiffs are directed to deposit a sum
of Rs.2,00,000/- before the Trial Court
within a period of two months from the date
of receipt of copy of this judgment.

vi. If the plaintiffs fail to deposit the amount
before the Trial Court, the defendants are at
liberty to recover the said amount, in
accordance with law.

vii. In view of disposal of the appeal,
I.A.No.1/2023 does not survive for
consideration and accordingly, stands
disposed of.

Sd/-
(ASHOK S. KINAGI)
JUDGE



NB,VNR
List No.: 1 Sl No.: 7
Ct:pk