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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23^RD DAY OF AUGUST, 2021

BEFORE

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

R.S.A.NO.458/2021 (DEC)

BETWEEN:

SRI M. KALLEGOWDA,

S/O LATE MANJE GOWDA,

AGED ABOUT 71 YEARS,

RESIDING AT KANADAL NEW EXTENSIONS,

KOTE, CHIKKAMAGALURU CITY,

CHIKKAMAGALURU DISTRICT-577101.

& APPELLANT

[BY SRI M.S. BHAGWAT, ADVOCATE (THROUGH V.C.)]

AND:

1.

SRI M. SHANKARAPPA,

S/O LATE MANJE GOWDA,

AGED ABOUT 64 YEARS,

RETIRED LECTURER AND AGRICULTURIST,

RESIDING AT MALALUR VILLAGE AND POST,

CHIKKAMAGALURU TALUK-577133.

2.

SRI M.K. PRASHANTH,

S/O M. KALLE GOWDA,

AGED ABOUT 38 YEARS,

RESIDING AT KANADAL NEW EXTENSIONS,

KOTE, CHIKKAMAGALURU CITY,

CHIKKAMAGALURU DISTRICT-577101.

3.

SMT. M.K. PAVITHRA,

D/O M. KALLE GOWDA,

AGED ABOUT 36 YEARS,

RESIDING AT KANADAL NEW EXTENSIONS,

2

KOTE, CHIKKAMAGALURU CITY,

CHIKKAMAGALURU DISTRICT-577101. ... RESPONDENTS

[BY SRI MADHUKESHWARA R.P., ADVOCATE FOR

SRI B.S. SACHIN, ADVOCATE FOR C/R-1]

THIS R.S.A IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGMENT AND DECREE DATED 03.01.2020

PASSED IN R.A.NO.34/2019 ON THE FILE OF THE PRINCIPAL

SENIOR CIVIL JUDGE AND CJM, CHIKKAMAGALURU, ALLOWING

THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE

DATED 02.04.2019 PASSED IN OS.NO.283/2014 ON THE FILE

OF

THE

3^RD

ADDITIONAL

CIVIL

JUDGE

AND

JMFC,

CHICKMAGALURU.

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

J U D G M E N T

This matter is listed for admission today. Heard the

learned counsel for the appellant and the learned counsel for the

caveator/respondent No.1.

2.

This appeal is filed challenging the judgment and

decree dated 03.01.2020 passed in R.A.No.34/2019 on the file of

the Principal Senior Civil Judge and CJM, Chikkamagaluru.

3.

The factual matrix of the case is that the plaintiff

filed a suit in O.S.No.283/2014 seeking the relief of declaration

that the plaintiff is the absolute owner of the suit schedule

property

and

for

permanent

injunction

restraining

the

defendants. The suit schedule property is site No.20 and the

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claim of the plaintiff before the Trial Court is that the suit

schedule property was the joint family property of him and

defendant No.1 and that there was an oral partition followed by

a memorandum of partition dated 20.08.1984 in the joint family

of him and defendant No.1 in which the schedule property was

allotted to his share and that thereafter with a malafide intention

and also to harass him, defendant No.1 through defendant Nos.2

and 3 being his children have filed a suit for partition of the joint

family properties including the schedule property before the

Hon'ble Senior Civil Judge, Chikkamagaluru in O.S.No.155/2004,

which came to be dismissed as per the judgment and decree

dated 13.12.2012 and the Hon'ble Court held that already there

was a partition in the joint family and that the khatha of the suit

schedule property still stands in the name of defendant No.1 and

except him, none have got any kind of right, title or interest in

or over the suit schedule property.

4.

It is the claim of the plaintiff that since the date of

partition dated 20.08.1984, he is in possession and enjoyment of

the suit schedule property and that though he made several

representations to the Grama Panchayath, Malalur, they are not

changing the khatha in his name and taking undue advantage of

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the fact that the katha of the schedule property standing in the

name of defendant No.1, subsequent to the dismissal of

O.S.No.155/2004, the defendants on 10.12.2013 tried to

encroach the suit schedule property and tried to remove the

fence put up by him around the suit schedule property and that

with great difficulty prevented the same and hence sought for

the relief of declaration.

5.

In pursuance of the suit, notices were issued against

defendant Nos.1 to 3. The defendants appeared before the

Court throug