SMT BHAGYA S M vs SRI KENCHE GOWDA @ DODDA HAIDE GOWDA

- 1 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007





IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 13 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

REGULAR SECOND APPEAL NO. 1386 OF 2007 (DEC)

BETWEEN:

1. SMT BHAGYA S M
W/O LATE A.C.CHIKKALINGAIAH
AGE:47 YEARS
R/O SATANUR, KANAKAPURA TALUK
BANGALORE RURAL DISTRICT-562 117.
…APPELLANT

(BY SRI. V. MANJUNATH, ADVOCATE)

AND:

1.




1(A)



1(B)










SRI KENCHE GOWDA
@ DODDA HAIDE GOWDA
S/O CHIKKA HAIDE GOWDA@ KYATHEGOWDA
SINCE DEAD BY LRs

SMT. SANNAMMA
W/O LATE KENCHEGOWDA
AGED ABOUT 60 YEARS

SRI. KUMAR
S/O LATE KENCHEGOWDA
AGED ABOUT 36 YEARS

BOTH ARE R/AT AREKATTE DODDI
SANTHANUR HOBLI, KANAKAPURA TALUK
RAMANAGARA DISTRICT-562 159.

2. SRI. PUTTASWAMY
S/O CHIKKA HAIDE GOWDA



Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 2 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



@ KYATHEGOWDA
AGE:65 YEARS
R/O AREKATTEDODDI, KABBAL POST
KANAKAPURA TALUK
BANGALORE RURAL DISTRICT-562 117.
…RESPONDENTS

(V/O DATED 11.06.2026 APPEAL AGAINST R2 IS DISMISSED
AS ABATED;
NOTICE TO R1(A) AMD R1(B) ARE SERVED AND
UNREPRESENTED)

THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 18.01.2007 PASSED IN
RA.NO.42/2005 ON THE FILE OF THE I ADDL.DISTRICT JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 4.4.2005 PASSED IN OS.NO.47/1997 ON THE FILE OF
THE PRL.CIVIL JUDGE (SR.DN.) RAMANAGARAM, DECREEING
THE SUIT FOR DECLARATION AND POSSESSION.

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

CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

ORAL JUDGMENT
The captioned second appeal is by the plaintiff
questioning the judgment and decree of the Appellate
Court in reversing the judgment and decree of the trial
Court in O.S.No.47/1997 and consequently dismissing the
suit.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 3 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



2. This Court deems it fit to cull out the family tree
based on pleadings for better understanding of the case.

3. The present second appeal arises out of a suit
instituted by the plaintiff, who is the widow of
Chikkalingaiah, in O.S.No.47/1997, seeking a declaration
that she and her children are the absolute owners of the
suit schedule property, together with consequential relief
of possession and mesne profits.
4. The case of the plaintiff is that propositus
Lingegowda had four sons, namely, Chikkalingaiah,
Kenchegowda, Puttaswamy and Chikkanna. According to
the plaintiff, there was a partition amongst her husband,
Chikkalingaiah, and his brothers, in which her husband
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 4 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



was allotted 20 guntas of land along with the residential
house situated at Sathanur. She further contended that
Sy.No.96/1, measuring 1 acre 26 guntas, was allotted to
Lingamma, the widow of Lingegowda, towards her
maintenance. The plaintiff specifically pleaded that the
other joint family properties, namely, Sy.Nos.100/3,
100/4, 101/4, 101/6 and 96/1, were also subjected to
partition.
5. The plaintiff further pleaded that, as the
residential house remained vacant, in February 1988, the
defendants approached her husband and sought
permission to occupy the house until they made alternative
arrangements for their residence. Acting upon the
assurances given by the defendants and subject to the
conditions stipulated by him, her husband permitted them
to occupy the residential premises. Accordingly, the
defendants have been residing therein since February
1988.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 5 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



6. After the demise of her husband, the plaintiff
claims to have maintained her children and brought them
up. As her children had attained marriageable age, she
intended to sell the residential house to meet their
matrimonial expenses. However, the prospective
purchasers insisted upon delivery of vacant possession
before proceeding with the transaction. Despite the
plaintiff’s demand and the intervention of one
Doddaveeranna, the defendants refused to vacate the
premises. Left with no other alternative, the plaintiff
instituted the suit seeking declaration of title, recovery of
possession and mesne profits.
7. The defendants entered appearance and filed
their written statement, stoutly denying the material
averments made in the plaint. They, however, admitted
that Chikkanna, the youngest of the four brothers, had
separated from the family and taken his legitimate share in
the family properties pursuant to a partition dated
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 6 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



25.04.1977. They specifically denied that any partition had
taken place between Chikkalingaiah and the other
brothers. Their principal defence was that the suit schedule
properties continued to be joint family ancestral properties
and that no partition, as pleaded by the plaintiff, had taken
place.
8. On the basis of the rival pleadings, the Trial
Court framed appropriate issues and called upon the
parties to substantiate their respective claims by adducing
oral and documentary evidence. Both the plaintiff and the
defendants led evidence in support of their respective
cases.
9. Upon appreciation of the pleadings, oral
evidence and documentary evidence on record, the Trial
Court answered Issue No.1 in the affirmative, holding that
the plaintiff had established that the suit schedule property
had fallen to the share of her husband, Chikkalingaiah, in a
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 7 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



partition and that, upon his demise, the plaintiff had
inherited the property.
10. While answering Issue Nos.2 and 3 in the
affirmative, the Trial Court held that the plaintiff had
established that the defendants had been permitted to
reside in the suit schedule property from February 1988
and that they had subsequently secured entries in respect
of the property in their names without the knowledge or
consent of the plaintiff. Issue No.4, which concerned the
defendants’ contention that the suit schedule property had
been acquired out of joint family funds, was answered in
the negative, holding that the defendants had failed to
establish the said plea.
11. Consequently, the Trial Court decreed the suit
and directed the defendants to deliver vacant possession
of the suit schedule property to the plaintiff.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 8 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



12. Aggrieved by the judgment and decree of the
Trial Court, defendant No.2 alone preferred an appeal
before the First Appellate Court.
13. The Appellate Court, upon re-appreciation of the
evidence on record, reversed the findings and conclusions
recorded by the Trial Court and proceeded to dismiss the
suit. In arriving at its conclusion, the Appellate Court drew
an adverse inference against the plaintiff on the ground
that she had failed to produce the alleged partition deed
dated 25.04.1977. Proceeding on the premise that the
plaintiff had failed to substantiate her plea of partition and
consequent severance of the joint family status, the
Appellate Court reversed the decree passed by the Trial
Court and dismissed the suit.
14. Being aggrieved by the judgment and decree
passed by the First Appellate Court, the plaintiff has
preferred the present second appeal, contending that the
findings recorded by the Appellate Court suffer from errors
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 9 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



warranting interference by this Court in exercise of its
jurisdiction under Section 100 of the Code of Civil
Procedure, 1908.
15. This Court, vide order dated 31.05.2011, was
pleased to admit the second appeal for consideration of the
following substantial questions of law:
1. Whether the lower appellate Court is justified in
reversing findings of the trial Court?
2. Whether the Appellate Court is proper in drawing
an adverse inference against the appellant, even though
the burden was on the respondents to prove that only one
of the brothers got his share by executing the
Relinquishment Deed?
3. Whether the interpretation of the trial Court with
regard to the evidence of DW.2 is in accordance with law?

16. Heard the learned counsel appearing for the
plaintiff. Perused the records.

Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 10 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



Finding on substantial question of law Nos.1 to 3:
17. Before proceeding further, it would be apposite
to refer to the relevant pleadings in the written statement.
In this regard, the pertinent portion of paragraph 3 of the
written statement is extracted hereunder:
“3. The allegations in para-3 of the plaint, that
during the year 1976 the marriage of plaintiff was
celebrated with the last brother of defendant, or after
some time of the marriage of Plaintiff due to the
active participation of wife of A.C.Chikkanna there
arose some misunderstandings in the family by
which time itself A.C.Chikkanna and his family were
living at Sathanur is true. It is true, due to support
made by the family of the defendants to the family of
A.C.Chikkanna for reasons best known to them, they
divided on 25.04.1977 is true. The allegations that
all the joint family properties were divided and the
four brothers took their respective shares is all
specifically denied as false.”

18. It would also be apposite to extract the relevant
portion of the cross-examination of DW.1, namely,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 11 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



Puttaswamy. In this regard, the relevant portion of
paragraph 4 of his cross-examination is extracted
hereunder:
“4. It is true that suit site has been purchased
in the name of the Plaintiff’s husband. It is true that
a site at Sathanur has been purchased in the name
of my brother – Chikkanna.”

19. It would be also apposite for this Court to
extract para 6 and para 7 of the cross-examination of
DW.1 namely Puttaswamy, which reads as under:
“6. It is true that after the death of husband of
my younger sister Chikkathayamma, she started to
live in our family. I do not know, even
approximately, as to when her husband died. It is
not true to suggest that even prior to
Chikkathayamma started to reside in our family,
partition had taken place in our family.
7. It is true that apart from the suit property,
there is another ancestral house to our family in our
village. It is true that my mother and
Chikkathayamma were residing in that house. But, it
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 12 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



is not true to suggest that they resided in their house
till their death. It is not true to suggest that in that
st
partition, that house fell to my share and the 1
defendant’s share.”

20. It would be also apposite for this Court to
extract cross-examination of DW.2 namely Kumara S/o
defendant No.1-Kenche Gowda. Para 3 of the cross-
examination of DW.2 would be relevant. The same is
extracted, which reads as under:
“3. It is true that Chikkathayamma was
residing along with her mother after the death of her
husband. It is true that at that time, my family and
nd
the 2 defendant’s family was residing in the old
ancestral house. It is not true to suggest that by that
time, partition had taken place in between my father
and his brothers. It is true that after entry of
Chikkathayamma to our family, dispute started and
nd
that then, my father and the 2 defendant occupied
the suit property with the permission of plaintiff’s
husband. It is true that now, we have vacated our
portion of the suit house and that it is lying vacant. It
is true that after the death of my grandfather, my
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 13 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



father was the manager of the joint family. It is true
nd
that my father was a nominal manager and the 2
defendant was managing the affairs of that family.”
(emphasis supplied)


21. A conjoint reading of the pleadings in the
written statement and the admissions elicited during the
cross-examination of DW.1 and DW.2 assumes significance
in determining whether there was a partition of the joint
family properties. The defendants, while admitting that
Chikkanna had separated from the family pursuant to the
partition dated 25.04.1977, have disputed the partition
pleaded by the plaintiff insofar as her husband and the
other brothers are concerned. However, the evidence of
DW.1 discloses an admission that the suit site was
purchased in the name of the plaintiff’s husband. He has
also admitted the existence of another ancestral
residential house in the village, in which his mother and
his widowed sister, Chikkathayamma, were residing. These
admissions assume relevance when examined in the
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 14 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



backdrop of the plaintiff’s specific plea that the joint family
properties had been partitioned and separate properties
had fallen to the respective shares of the family members.
22. The evidence of DW.2, Kumara, son of
defendant No.1, is of considerable significance. In his
cross-examination, DW.2 has admitted that, after the
death of Chikkathayamma’s husband, she resided with her
mother and that, at the relevant point of time, the family
of his father and that of defendant No.2 were residing in
the old ancestral house. He has further admitted that,
following the entry of Chikkathayamma into the family,
disputes arose and that his father and defendant No.2
occupied the suit schedule property with the permission of
the plaintiff’s husband. He has also categorically admitted
that his family had vacated its portion of the suit
residential house and that the said portion was lying
vacant. These admissions lend considerable support to the
plaintiff’s case regarding the permissive nature of the
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 15 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



defendants’ occupation of the suit property. They also
assume significance in the context of the plaintiff’s plea
that her husband was exercising exclusive rights over the
residential house.
23. Apart from the oral evidence, the documentary
evidence produced by the plaintiff also assumes
significance. Ex.P-2(a), being a revenue record pertaining
to Sy.No.96/1, reflects the name of Lingamma, the widow
of Lingegowda. This entry lends support to the plaintiff’s
contention that the said survey number had been allotted
to Lingamma towards her maintenance. Though a revenue
entry, by itself, cannot conclusively establish the nature of
the rights created in respect of the property, the same
constitutes a relevant circumstance to be considered along
with the other oral and documentary evidence on record.
24. The next set of documents comprises
Exs.P-2(f), P-2(g), P-2(h) and P-2(i), being the record of
rights pertaining to Sy.Nos.100/3, 100/4, 101/4 and
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 16 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



101/6, respectively. These revenue records disclose the
names of defendant Nos.1 and 2 in respect of the
aforesaid lands, while the name of the plaintiff’s husband
is conspicuously absent. The entries assume significance
when considered in the context of the plaintiff’s specific
case that the joint family properties had been divided and
that the respective properties had been allotted to the
shares of the family members.
25. Equally significant are Exs.P-2(j), P-2(k) and
P-2(l), pertaining to Sy.Nos.162/9, 162/7 and 162/5,
respectively, which reflect the name of the plaintiff’s
husband. These entries, when read conjointly with the
revenue records pertaining to the other survey numbers,
lend support to the plaintiff’s case that the agricultural
properties had been separately held by the respective
family members. Ex.P-5, which relates to the proceedings
before the Deputy Tahsildar concerning the revenue
records, also contains a reference to the severance of the
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 17 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



family and the allotment of Sy.Nos.162/5, 162/7 and
162/9 to the plaintiff’s husband. Though the revenue
records and the proceedings before the revenue
authorities cannot, in themselves, constitute conclusive
proof of title or partition, they are relevant circumstances
which ought to have been considered cumulatively with
the oral evidence adduced by the parties.
26. The cumulative effect of the aforesaid evidence
assumes considerable significance. While the revenue
records indicate that certain agricultural lands stood in the
names of defendant Nos.1 and 2, other lands stood in the
name of the plaintiff’s husband. More importantly, DW.2
has admitted that his father and defendant No.2 occupied
the suit residential house with the permission of the
plaintiff’s husband and that his family had subsequently
vacated its portion of the house. These admissions, when
considered along with the documentary evidence relating
to the separate enjoyment of the agricultural properties,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 18 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



lend support to the plaintiff’s case that the family
properties had been divided and that the suit residential
house had fallen to the share of her husband. The absence
of the partition deed, therefore, could not have been
treated as the sole and decisive circumstance for rejecting
the plaintiff’s claim, without examining the effect of the
remaining evidence on record.
27. It is true that the initial burden was on the
plaintiff to establish her title to the suit schedule property
and substantiate her specific plea that the same had fallen
to the share of her husband in a partition. The mere
assertion of a prior partition, in the absence of the
document relied upon or other cogent evidence, would
not, by itself, suffice to establish such a plea. However,
the question that arises for consideration is whether the
plaintiff has discharged the burden cast upon her by the
cumulative effect of the oral and documentary evidence
adduced in the proceedings.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 19 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



28. The revenue records produced at Ex.P-2 series
indicate separate entries in respect of the agricultural
properties standing in the names of the respective family
members. The evidence of DW.1 and DW.2 also contains
material admissions concerning the purchase of the suit
site in the name of the plaintiff’s husband, the existence of
another ancestral residential house and the permissive
occupation of the suit premises by the defendants. These
circumstances were required to be examined cumulatively
to ascertain whether the plaintiff had established, on a
preponderance of probabilities, the pleaded partition and
the allotment of the suit property to her husband. The
Trial Court, while answering Issue Nos.1 to 3 in the
affirmative, has taken these circumstances into
consideration. The approach adopted by the First Appellate
Court, on the other hand, indicates that the absence of the
partition deed was treated as the determinative factor,
without an adequate examination of the other material
evidence.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 20 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



29. The First Appellate Court, being the final Court
of fact, was under an obligation to independently re-
appreciate the entire oral and documentary evidence and
record its findings on the material issues arising for
consideration. However, a perusal of the impugned
judgment discloses that, although the First Appellate Court
has referred to the revenue records marked at Ex.P-2
series, it has not adequately examined their evidentiary
significance in the context of the rival pleadings and the
admissions elicited from DW.1 and DW.2. In particular,
there is no meaningful discussion as to the effect of the
separate revenue entries pertaining to the agricultural
lands or the admissions concerning the permissive
occupation of the suit residential house. The First
Appellate Court has substantially proceeded on the
premise that, in the absence of the partition deed, the
plaintiff had failed to establish severance of the joint
family status. Such an approach fails to take into account
the cumulative effect of the evidence available on record.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 21 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



30. The fact that the parties hail from a rural
background may be a relevant contextual circumstance
while appreciating the evidence concerning an alleged
partition; however, it cannot, by itself, dispense with the
plaintiff’s obligation to establish her title in accordance
with law. Equally, the absence of a formal partition deed
cannot automatically lead to the conclusion that no
partition had taken place, where the plea is otherwise
sought to be established through oral evidence, the
conduct of the parties and the circumstances surrounding
their separate enjoyment of the properties.
31. In the present case, the revenue records
pertaining to Sy.Nos.100/3, 100/4, 101/4 and 101/6
reflect the names of defendant Nos.1 and 2, whereas the
records pertaining to Sy.Nos.162/5, 162/7 and 162/9
reflect the name of the plaintiff’s husband. The evidentiary
value of these entries had to be assessed in conjunction
with the admissions elicited during the cross-examination
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 22 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



of the defendants. Though revenue entries are not
conclusive proof of title or partition, their probative value
cannot be altogether disregarded, particularly when they
form part of a body of evidence relied upon to establish
separate enjoyment of the family properties. The absence
of an effective rebuttal to these entries was also a
circumstance requiring consideration by the First Appellate
Court.
32. In civil proceedings, the plaintiff is required to
establish her case on a preponderance of probabilities.
Applying the said standard to the evidence on record, the
plaintiff’s case cannot be rejected merely on account of
her failure to produce the partition deed, without
considering the other circumstances which support her
claim. The evidence of DW.1 that the suit site was
purchased in the name of the plaintiff’s husband, the
revenue records reflecting separate entries in respect of
the agricultural properties and the admissions of DW.2
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 23 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



regarding the permissive occupation of the suit residential
house constitute material circumstances which require
consideration as a whole.
33. The admission of DW.2 that his father and
defendant No.2 occupied the suit property with the
permission of the plaintiff’s husband assumes particular
significance. Such an admission lends support to the
plaintiff’s case that the defendants did not enter the
premises in assertion of an independent right but were
permitted to occupy the same by her husband. The further
admission that his family had vacated its portion of the
suit house and that the same was lying vacant is also
relevant in appreciating the nature of the defendants’
occupation.
34. On an overall consideration of the oral and
documentary evidence, the plaintiff has made out a case
that her husband was exercising rights over the suit
residential property and that the defendants’ occupation
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 24 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



was permissive. The evidence, therefore, required a
comprehensive assessment to determine whether the
plaintiff had established her claim to the property and her
consequential entitlement to possession. The First
Appellate Court, however, has not undertaken such an
assessment.
35. In the light of the foregoing discussion, this
Court is of the considered view that the First Appellate
Court has failed to consider material admissions elicited
from the defendants and the evidentiary significance of the
documents marked at Ex.P-2 series and Ex.P-5. The failure
to examine the cumulative effect of the oral and
documentary evidence has materially affected the findings
recorded by the First Appellate Court. Its conclusion,
founded substantially on the non-production of the
partition deed, cannot be sustained without a proper
consideration of the remaining evidence bearing upon the
plaintiff’s claim.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 25 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



36. The impugned judgment and decree, therefore,
suffer from a material infirmity in the appreciation of the
evidence on record and warrant interference in this second
appeal.
37. In view of the foregoing discussion, substantial
question of law No.1 is answered in the Negative , holding
that the First Appellate Court was not justified in reversing
the findings recorded by the Trial Court without properly
appreciating the cumulative effect of the oral and
documentary evidence on record.
38. Substantial question of law No.2 is answered in
the Negative , holding that the First Appellate Court was
not justified in drawing an adverse inference against the
plaintiff merely on account of non-production of the
alleged partition deed, particularly when the defendants
had admitted the separation of Chikkanna from the joint
family and the evidence on record disclosed circumstances
supporting the plaintiff’s case of partition. The burden of
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 26 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



establishing the plaintiff’s title and the pleaded partition
cannot, however, be determined solely by reference to the
defendants’ failure to produce or prove the relinquishment
deed; the rival pleadings and the entire evidence on
record are required to be considered.
39. Substantial question of law No.3 is answered in
the Affirmative , holding that the Trial Court was justified
in appreciating the evidence of DW.2, particularly his
admissions regarding the permissive occupation of the suit
schedule property by the defendants and the subsequent
vacation of a portion of the residential house. The First
Appellate Court failed to give due consideration to the
evidentiary significance of these admissions while
reversing the decree passed by the Trial Court.


Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

- 27 -
HC-KAR
NC: 2026:KHC:57699
RSA No. 1386 of 2007

CNR: KAHC010320412007



40. For the foregoing reasons, this Court proceeds
to pass the following:
ORDER
(i) The second appeal is allowed .
(ii) The judgment and decree dated
18.01.2007 passed in R.A.No.42/2005 by the I
Additional District and Sessions Judge, Bengaluru
Rural District, Bengaluru, are hereby set aside.
(iii) Consequently, the judgment and
decree dated 04.04.2005 passed in
O.S.No.47/1997 by the Principal Civil Judge
(Senior Division), Ramanagara, are hereby
affirmed.
(iv) Pending interlocutory applications, if
any, stand disposed of.

Digitally Signed By:
SACHIN SHANKAR MAGADUM

Verified
(SACHIN SHANKAR MAGADUM)
JUDGE

CA
List No.: 3 Sl No.: 1