SRI A M DINESH vs SMT JAYALAKSHMAMMA

Court
Karnataka High Court

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HC-KAR
NC: 2026:KHC:59017
RSA No. 119 of 2025


CNR: KAHC010051462025




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 17 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE R. NATARAJ

REGULAR SECOND APPEAL NO. 119 OF 2025 (PAR)

BETWEEN:

SRI. A.M. DINESH
S/O. A.T. MUKUNDAIAH
AGED ABOUT 38 YEARS
R/AT ALLILAGATTA VILLAGE,
HAGALWADI HOBLI
GUBBI TALUK, TUMKURU DISTRICT
…APPELLANT
(BY SRI. PRASHANTH S., ADVOCATE)





AND:



1. SMT. JAYALAKSHMAMMA
W/O. VENKATESH C.K
D/O. LATE NARAYANAPPA A.V
AGED ABOUT 65 YEARS
R/AT NO. 616, THERU BEEDI
HAGALAWADI GATE
KASABA HOBLI, C.N. HALLI TALUK

2. SRI. A.N. SREENIVASA
S/O. LATE NARAYANAPPA A.V
AGED ABOUT 60 YEARS

3.
SMT. SUSHEELAMMA
W/O. SRI. A.N. SREENIVASA
AGED ABOUT 55 YEARS
RESPONDENT NO.2 AND 3 ARE
R/A ALILAGHATTA VILLAGE,
HAGALAWADI HOBLI
GUBBI TALUK, TUMAKURU.




Digitally
signed by
HEMALATHA J
Location:
HIGH COURT
OF
KARNATAKA


…RESPONDENTS
(BY SRI. MADHU C.S., ADVOCATE AND
SMT. D.L. LATHA, ADVOCATE FOR CAVEARTOR/R1)

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HC-KAR
NC: 2026:KHC:59017
RSA No. 119 of 2025


CNR: KAHC010051462025


THIS RSA IS FILED SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 29.10.2024 PASSED IN RA
NO.90/2024 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE,
TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 03.06.2024 PASSED IN OS
NO.42/2023 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, AND JMFC, GUBBI.
THIS RSA, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE R. NATARAJ

ORAL JUDGMENT
The defendant No.3 in O.S.No.42/2023 on the file of the
Additional Senior Civil Judge, Gubbi, has filed this regular
second appeal challenging the judgment and decree dated
03.06.2024 passed by the Additional Senior Civil Judge and
JMFC, Gubbi in O.S.No.42/2023 as well as the judgment and
decree dated 29.10.2024 passed by the VII Additional District
Judge, Tumakuru in R.A.No.90/2024.

2. The parties shall henceforth be referred to as they
were arrayed before the trial Court. The appeal is filed by the
defendant No.3.

3. The suit in O.S.No.42/2023 was filed for partition
and separate possession of the plaintiff's share in the suit
properties. The plaintiff is the sister of the defendant No.1 and

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HC-KAR
NC: 2026:KHC:59017
RSA No. 119 of 2025


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the defendant No.2 is the wife of the defendant No.1. The
plaintiff claims that the suit properties are ancestral and joint
family properties of the plaintiff and the defendant No.1. She
claimed that she was in joint possession and enjoyment of the
suit properties along with the defendant No.1. The defendant
Nos.1 and 2 conspired with each other and brought about an
agreement of sale in respect of suit item No.1 in favour of the
defendant No.3. The defendant No.3 filed O.S.No.349/2014 for
specific performance of the agreement and obtained a decree
on 12.01.2021 following which, an execution petition was filed
in E.P.No.12/2022 to defeat the plaintiff's rights in the suit
properties. She contends that when she came to know of this
agreement, she demanded a share which was refused and
consequently, she was advised to seek for partition of her
share.

4. The notice of the suit was served to the defendants.

5. The defendant Nos.1 and 2 did not participate in the
proceedings and therefore were placed ex-parte . The defendant
No.3 contested the suit and contended that the defendant
Nos.1 and 2 sold the suit Item No.1 for a sale consideration of

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HC-KAR
NC: 2026:KHC:59017
RSA No. 119 of 2025


CNR: KAHC010051462025


Rs.1,45,000/- and executed an agreement of sale dated
21.06.2012, which was duly registered before the concerned
Sub-Registrar. A sum of Rs.1,30,000/- was paid as part of the
agreed sale consideration and when they failed to execute a
deed of absolute sale, a suit in O.S.No.349/2014 was filed for
specific performance of the agreement of sale, which was
decreed on 12.01.2021. The defendant Nos.1 and 2 set up their
children to file R.A.No.23/2022, which was dismissed on
01.08.2022. The defendant No.3 then filed E.P.No.17/2021 for
executing the judgment and decree passed in
O.S.No.349/2014. In the meanwhile, the defendant Nos.1 and
2 had also instigated their children to file a suit for partition in
O.S.No.76/2021, which is pending consideration. The defendant
No.3 therefore claimed that the defendant Nos.1 and 2 after
having executed an agreement of sale and in order to avoid the
decree passed in O.S.No.349/2014 had set up the plaintiff to
file the present suit.

6. Based on these contentions, the trial court framed
the following issues:

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HC-KAR
NC: 2026:KHC:59017
RSA No. 119 of 2025


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"1. Whether the plaintiff proves that the suit schedule
properties are the ancestral and joint family
properties of the plaintiff and the defendant No.1
and 2?
2. Whether the defendant No.3, proves that, this suit
is not maintainable pertaining to item No.1 of the
suit schedule property in view of proceedings
of OS No. 349/2014, RA No.23/2022?
3. Whether the plaintiff is entitled for half share in the
suit schedule properties?
4. What Order or Decree?"


7. The trial Court recorded the evidence of plaintiff as
P.W.1 and marked Exs.P.1 to P.8. The defendant No.3 was
examined as D.W.1 and he marked Exs.D.1 to D.20. Based on
the oral and documentary evidence, the trial Court held that
the plaintiff had proved that the suit properties were the
ancestral and joint family properties of the plaintiff and
defendant Nos.1 and 2. It therefore held that the plaintiff is
entitled to an undivided share in the suit properties and
consequently, declared that plaintiff is entitled to half share in
the suit properties.

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HC-KAR
NC: 2026:KHC:59017
RSA No. 119 of 2025


CNR: KAHC010051462025



8. Being aggrieved by the said judgment and decree,
the defendant No.3 filed R.A.No.90/2024. The First Appellate
Court secured the records of the trial Court and framed points
for consideration and after hearing the defendant No.3 as well
as the plaintiff, dismissed the appeal in terms of the judgment
and decree dated 29.10.2024. Being aggrieved by the said
judgment and decree, the defendant No.3 has filed this regular
second appeal.

9. The learned counsel for the defendant No.3
submitted that the plaint in O.S.No.42/2023 was the handiwork
of the defendant Nos.1 and 2 as they were unsuccessful in
O.S.No.349/2014. He contends that the defendant Nos.1 and 2
set up their children to file R.A.No.23/2022, which too was
dismissed on 01.08.2022. Thereafter, they set up their children
to file a suit for partition separate possession and have
presently instigated the plaintiff to file the present suit. He
therefore contends that the institution of the suit is driven by
mala fides and hence, the trial Court as well as the First
Appellate Court failed to consider this crucial question. He also
contends that plaintiff was aware of the sale agreement in

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HC-KAR
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RSA No. 119 of 2025


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favour of the defendant No.3 and therefore, the trial Court as
well as the First Appellate Court ought not to have granted a
share in the suit properties. He also contends that as per the
RTC of suit Item No.1, the property stood in the name of the
defendant No.2 as per MR H4/2018-19 dated 01.02.2019.
Hence, the trial Court could not have declared that the plaintiff
is entitled to half share in the suit Item No.1. He also contends
that the defendant Nos.1 and 2 deliberately did not appear
before the Court and were placed ex-parte , which speaks
volumes of the collusion between the plaintiff and the
defendant Nos.1 and 2 to upset the decree passed in
O.S.No.349/2014. He therefore contends that the impugned
judgment and decree passed by the trial Court and the First
Appellate Court be set at nought in so far as suit Item No.1 is
concerned.

10. Per contra, the learned counsel for the plaintiff
submitted that the relationship between the plaintiff and the
defendant Nos.1 and 2 is not in dispute. The defendant Nos.1
and 2 did not contest the suit and therefore, they admitted that
the suit properties are the joint family ancestral properties and

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HC-KAR
NC: 2026:KHC:59017
RSA No. 119 of 2025


CNR: KAHC010051462025


therefore, the trial Court was right in holding that the plaintiff is
entitled to half share in the suit properties and hence no
interference is warranted.

11. I have considered the submissions of the learned
counsel for the plaintiff and learned counsel for the defendant
No.3. I have perused the judgment and decree of the trial
Court as well as the First Appellate Court.

12. The suit is filed for partition and separate
possession of plaintiff's ½ share in respect of 7 items of the
schedule properties. Item No.1 is 39.08 guntas in Sy.No.3/1
situate at Moodlahalli, Hagalawadi Hobli, Gubbi Taluk. Item
Nos.2 to 7 are agricultural lands situate at Alilaghatta,
Hagalawadi Hobli, Gubbi Taluk. The defendant Nos.1 and 2 had
conveyed the suit Item No.1 to the defendant No.3 in terms of
a sale agreement dated 21.06.2012 and the defendant No.3
sought for specific performance of the agreement of sale in
O.S.No.349/2014, which was decreed. It appears that the
defendant No.3 has already obtained a deed of absolute sale in
respect of suit Item No.1 pursuant to orders passed in
E.P.No.17/2021. Therefore, the defendant No.3, who is a

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HC-KAR
NC: 2026:KHC:59017
RSA No. 119 of 2025


CNR: KAHC010051462025


stranger to the family, cannot assail the judgment and decree
passed by the trial Court and the First Appellate Court, as he
cannot be a competent person to speak whether suit Item No.1
is ancestral or joint family property or not. Therefore, the
judgment and decree of the trial Court and the First Appellate
Court cannot be disturbed. However, having regard to the fact
that the defendant No.3 has purchased suit Item No.1, it is for
him to work out his remedy in final decree proceedings and
seek for allotment of suit Item No.1 to the share of the
defendant No.1. In such an event, the final decree Court shall
consider whether it is feasible to allot suit Item No.1 to the
share of defendant No.1 and apportion the share of the plaintiff
in the other properties. Therefore, no substantial question of
law arises for consideration in this appeal and the appeal
stands disposed of subject to the observations made
hereinabove.

Sd/-
(R. NATARAJ)
JUDGE
BKN/List No.: 1 Sl No.: 83