IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 640 OF 2024 (PAR)

BETWEEN:

1. SATHISH AGED ABOUT 53 YEARS, S/O LATE MARIBASAPPA, ARALIKERE VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT.

…APPELLANT (BY SMT. SHRUTHI S.P., ADVOCATE)

AND:

1. ROOPESH AGED ABOUT 40 YEARS, S/O LATE MARIBASAPPA, Digitally signed ARALIKERE VILLAGE, by DEVIKA M KASABA HOBLI, Location: HIGH COURT O F TURUVEKERE TALUK, KARNATAKA TUMKUR DISTRICT.

2. LALITHAMMA AGED BOUT 73 YEARS, W/O LATE MARIBASAPPA, ARALIKERE VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT.

…RESPONDENTS (BY SRI. SUNIL KUMAR H., ADVOCATE FOR R1; SRI. NAVEEN KUMAR K.N., ADVOCATE FOR R2)

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.03.2023 PASSED IN RA NO.10032/2018 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, TIPTUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.07.2018 PASSED IN OS NO.1/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, TURUVEKERE.

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

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

ORAL JUDGMENT

1. This matter is listed for admission. Heard the appellant’s counsel and also the counsel appearing for the respondents.

2. The factual matrix of case of plaintiff before the Trial Court that Suit ‘A’ and ‘B’ schedule properties are ancestral and joint family properties of plaintiff and defendants. The defendant No.2 appeared and filed written statement contending that there was a partition dated 25.12.1999 and allowed the parties to lead evidence and plaintiff also led evidence before the Court also examined one witness as P.W.2 and got marked document Ex.P.1 to Ex.P.20. On the other hand, defendant No.2 examined as D.W.1 and also examined one witness as D.W.2 and got marked document Ex.D.1 to Ex.D.24. The Trial Court having considered both oral and documentary evidence, comes to the conclusion that suit schedule property i.e., ‘A’ and ‘B’ properties are ancestral and joint family properties and granted 4/9^th share and contention of the defendant No.2 that already there was a partition was not accepted and the same is answered as negative by answering the Issue No.2.

3. Being aggrieved by the said judgment and decree, an appeal is filed by defendant No.2 in R.A.No.10032/2018 before the First Appellate Court. The Appellate Court having re-assessed the material available on record and considering the grounds which have been urged in the appeal memo, answered the points that suit schedule properties are the joint family properties and though the defense was taken that there was already a partition on 25.12.1999 and though the defendant No.2, has taken the said defense that there was an unregistered partition deed, but he did not prove the same before the Trial Court as well as the First Appellate Court and fails to prove that there was a partition between himself, plaintiff and their father in respect of ‘A’ schedule properties. It is also his contention that Item No.1 was purchased by mortgaging the properties allotted to his share and item No.2 is purchased out of his own earning. The defendant No.2 has failed to prove that there was a partition and share was allotted to him and nothing is placed on record. Hence, the contention of the appellant was not accepted and confirmed the judgment of the Trial Court.

4. Being aggrieved by the said judgment and decree, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant that both the Trial Court and First Appellate Court committed an error in not considering the previous partition which is not challenged by the respondent herein and also the very suit itself is not maintainable when there was a partition earlier and also both the Courts have committed an error and not give any credence to the revenue entries