IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.842 OF 2025 (DEC/INJ)

BETWEEN:

1. VASUDEVA ACHARYA S/O LATE H. GUNDA ACHARYA AGED ABOUT 70 YEARS NO.13, S.K. NIVAS, 2^ND MAIN DESHABANDHU NAGAR VIDYARANYAPURA BENGALURU - 560 097.

…APPELLANT (BY SRI. M. JAGANNATH ALVA, ADVOCATE)

AND:

1. SMT. MEERA B. ACHARYA W/O LATE BHASKARA ACHARYA AGED ABOUT 60 YEARS Digitally signed by DEVIKA M 2. SMT. REKHA B. ACHARYA Location: HIGH D/O LATE BHASKARA ACHARYA COURT OF AGED ABOUT 37 YEARS KARNATAKA

3. RAKESH B. ACHARYA S/O LATE BHASKARA ACHARYA AGED ABOUT 33 YEARS

4. SMT. RAKSHA B. ACHARYA D/O LATE BHASKARA ACHARYA AGED ABOUT 30 YEARS NOS.1 TO 4 ARE R/AT M.B. NIVAS, OPP: KAPIKAD BUS STAND THOKKOTTU POST, ULLAL MANGALURU - 575 017.

5. SMT. SANDHYA P. BALLAL W/O MR. PRASAD BALLAL AGED ABOUT 45 YEARS R/AT SUBODH BALLAL HOUSE MELPETE, HEBRI VILLAGE KARKALA TALUK-576 112.

…RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.01.2025 PASSED IN R.A.NO.22/2018 ON THE FILE OF SENIOR CIVIL JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.06.2018 PASSED IN O.S.NO.29/2015 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, KARKALA.

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

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

This matter is listed for admission and I have heard learned counsel for the appellant.

2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of the case of the plaintiff before the Trial Court is that as per the partition deed dated 27.10.1994 between the children of Gunda Acharya, preferential right was conferred upon the co-sharer to sell the property only to the family members and exclude outsiders and contention was also taken that the defendants illegally sold the property in violation of the partition deed. Hence, the plaintiff is entitled for the relief of mandatory injunction directing the defendants to vacate the suit schedule property and surrender the same to the plaintiff.

4. The defendant Nos.1 to 4 remained absent and they have been placed exparte. The defendant No.5 took the contention that suit schedule property was sold by defendant Nos.1 to 4 for valid consideration to clear the loan advanced by Bagavathi Co-operative Bank to deceased Bhaskar Acharya and suit property was hypothecated to suit Bank.

5. The Trial Court having considered the material available on record though answered issue Nos.1 and 2 as ‘affirmative’, particularly in paragraph Nos.17 and 18 taken note of the limitation and while answering issue of limitation in paragraph No.17 and having referred the judgment of the Apex Court in the case of Ashutosh Chaturvedi vs. Prano Devi reported in AIR 2008 SC 2171, wherein it is categorically held that preferential right is available within 1 year and the present suit is filed after 3 years. Hence, the plaintiff is not entitled for the relief of declaration and dismissed the suit.

6. The judgment and decree of the Trial Court is challenged before the First Appellate Court in R.A.No.22/2018 and the First Appellate Court also having reassessed the material available on record in keeping the grounds which have been urged in the appeal formulated the points whether the plaintiff proves that as per partition dated 27.10.1994, preferential right was conferred upon the co-sharer, whether the sale is in violation of terms of partition and whether the judgment and decree of the Trial Court requires interference. The First Appellate Court having considered the material available on record, particularly the answer elicited from the mouth of witnesses and also the document of Ex.P1, taken note of preferential right given in the partition deed and also taken note of the reasoning given by the Trial Court and Article 97 of the Limitation