IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1902 OF 2025 (PAR)

BETWEEN:

1. SRI. GIRIDHAR K.

S/O. KUPPUSWAMY, AGED ABOUT 64 YEARS, R/AT NO. 1357, 2^ND STAGE, WEST OF CHORD ROAD, MAHALAKSHMIPURAM, BANGALORE - 560 086.

…APPELLANT (BY SRI. MANJUNATH S.N., ADVOCATE)

AND:

Digitally signed by SHARADAVANI 1. SRI. DASHARATHI K.

B S/O. M.S. KUPPUSWAMY, Location: High Court of AGED ABOUT 72 YEARS, Karnataka R/AT NO.11, 1^ST MAIN, KHB COLONY, VIVEKANANDA NAGAR, HOSAKOTE, BANGALORE RURAL DISTRICT.

2. SRI. PADMANABHA K.

S/O. M.S. KUPPUSWAMY, AGED ABOUT 69 YEARS, R/AT NO.87, 6^TH MAIN, SHANKARA NAGAR BANGALORE - 560 096

3. SMT. JAYASHREE K W/O LATE SUKHATHIRTHA K AGED ABOUT 64 YEARS R/AT NO. 130, 6^TH MAIN, POSTAL COLONY, SANJAYNAGAR BANGALORE - 560 94 …RESPONDENTS (BY SRI. B.N. MURALIDHAR, ADVOCATE FOR C/R1 AND C/R2 SRI. M. MADHAVACHAR, ADVOCATE FOR C/R3)

THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.03.2025 PASSED IN OS NO.4396/2017 ON THE FILE OF LXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU CITY (CCH-63)., DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT

This appeal by the defendant No.2 in OS 4396 of 2017 is directed against the impugned judgement and decree dated 28.03.2025 passed by the LXII Additional City Civil and Sessions at Bangalore, whereby the said suit filed by the respondents No.1 and 2 - plaintiffs against appellant - defendant No.2 and responded No.3 - defendant No.3 for partition and separate possession of their alleged share in the suit schedule immovable property was decreed by the trial Court in favour of the plaintiff and against the defendant. 2. Heard learned counsel for appellant and learned counsel for respondents No.1 and 2 and learned counsel for respondent No.3 and perused the material on record. With the consent of both sides, though the matter is posted for admission, the same is taken up for final disposal.

3. A perusal of the material on record will indicate that the relationship between the parties is not in dispute in as much as that the respondents No.1 and 2 are none other than the children of M S Kuppuswamy and Smt. Vasantha Kuppuswamy. The plaintiffs filed the instant suit against their mother Smt. Vasantha Kuppuswamy (defendant No.1), their brother - appellant (defendant No.2) and their sister Jayashree (defendant No.3) seeking partition and separate possession of their alleged share in the suit schedule property on the ground that the said property belonged absolutely to their father Mr. Kuppuswamy, who was missing from 1972 onwards and by virtue of Section 108 of the Indian Evidence Act, he is deemed to have died a civil death and consequently all the parties would be entitled to their legitimate share in the suit schedule properties. The appellant - defendant No.2 as well as the mother Smt. Vasantha Kuppuswamy - defendant No.1 filed their written statement inter alia contending that the suit schedule property was the separate and self acquired property of defendant No.1 and neither the plaintiffs nor defendant No.3 were entitled to claim a share in the suit schedule property during the lifetime of defendant No.1. It was also contended that after the aforesaid Kuppuswamy went missing, one more property i.e., land bearing Sy. No.155 measuring 4 acres 22 guntas situated at Adivala village, Hiriyur taluk, Chitradurga district was alienated by all the parties to the suit and the sale consideration was utilised for the purpose of putting up construction and development of a house i.e., house number 11, KHB colony near Citizen School, Hoskote and the said property having not been included among the suit schedule property, the suit was bad for non joinder of necessary properties. It was therefore contended