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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 20^TH DAY OF SEPTEMBER, 2021

BEFORE

THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

R.S.A. No.1472/2006

Between:

Shivanand S/o Shadakshari

Age: Major, Occ: Employee in

ABL, Shahabad

Now residing at H.No.3-651

and 3-652, Gazipura

Kalaburagi

... Appellant

(By Sri Harshavardhan R. Malipatil, Advocate)

And:

1.

Prakash S/o Panchakshari

Since deceased by LRs:

1(a) Annapurna W/o Late Prakash

Age: 60 years

1(b) Nityanand S/o Late Prakash

Age: 30 years

1(c) Divyarani D/o Late Prakash

Age: 28 years

2

All R/o H.No.3-651

Shadakshari Math,

Gazipura, Kalaburagi-585101

2.

Gurubai @ Renuka

W/o Late Shambuling

Age: Major

3.

Vishwanath S/o Late Shambuling

Age: 24 years

4.

Manjunath S/o late Shambuling

Age: 16 years

5.

Supriya D/o Late Shambuling

Age: 21 years

6.

Preeti @ Pinky

D/o Late Shambuling

Age: 18 years

L.Rs: Manjunath minor

U/G natural mother

Gurubai @ Renuka

W/o Late Shambuling

7.

Mrutunjaya S/o Panchakshari

Age: 45 years, Occ:

8.

Nitalaksh S/o Panchakshari

Age: 45 years

Assistant Mechanical Testing

Laboratory, PDA Engineering College

Kalaburagi-585102

9.

Mahesh @ Karabasayya

S/o Panchaksharayya

Since deceased by LRs:

3

9(a) Sumangala W/o Mahesh @ Karabasayya

Age: Major

9(b) Panchakshari S/o Mahesh @ Karabasayya

Age: Major

9(c) Kavya D/o Mahesh @ Karabasayya

Age: Major

All R/o H.No.3-651

Gazipura, Kalaburagi-585101

10.

Chandrabagamma W/o Sangangouda

Aged: 87 years, Occ: Housewife

R/o Yaddrammi, Tq. Yaddrami

Dist: Kalaburagi

... Respondents

(By Sri B.V. Jalde, Advocate for R3, R7 and R8;

R1(a) to R1(c) - served;

R4 to R6 are minors, reptd. By R2;

R2 - served;

R9(a), R9(b) and R9(c) - served;

Sri Rajesh G. Doddamani, Advocate for R10)

This Regular Second Appeal is filed under Section

100 of CPC praying to, allow this appeal by setting aside

the judgment and decree of Fast Track Court-VI, Gulbarga

dated 15.02.2006 in R.A.No.10/2003.

This appeal coming on for final hearing, this day, the

Court delivered the following:-

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JUDGMENT

This appeal is filed challenging the judgment and

order dated 15.02.2006 passed in R.A.No.10/2003 by

the Fast Track Court-VI, Gulbarga.

2.

For the sake of convenience, the parties

are referred to as per their rankings before the trial

Court. The appellant is the plaintiff and the

respondents are the defendants before the trial Court.

3.

Brief facts giving rise to filing of this appeal

are as under:

The plaintiff filed suit for partition and separate

possession stating that plaintiff and defendant Nos.1

to 5 are the members of Hindu joint family and their

relationship with each other is that of cousin brothers.

It is contended that Karabasappa S/o Sadaksharayya

had

two

sons,

namely,

Sadaksharayya

and

Panchaksharayya.

Plaintiff

is

the

son

of

5

Sadaksharayya and defendants are the sons of

Panchayaksharayya. It is the case of the plaintiff that

the suit properties are ancestral properties i.e., house

and open space over southern side of the suit house.

At the time of father of plaintiff and father of

defendant Nos.1 to 5 the family was undivided Hindu

joint family and is still in joint possession and

enjoyment even to this day. The suit properties are

ancestral properties and are in joint possession of

plaintiff and defendant Nos.1 to 5. No partition took

place in between the father of plaintiff and father of

defendant Nos.1 to 5. Plaintiff made a request to the

defendants to effect partition of the suit schedule

properties. The defendants refused to effect partition.

Hence, the plaintiff was constrained to file the suit.

3.1

Defendant Nos.1, 3 to 5 filed written

statement contending that there is no dispute in

regard to the genealogy filed by the plaintiff in para-2

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of the plaint. There is a dispute in regard to the

property and further contended that there are other

properties which are purposely