IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.425 OF 2025 (PAR)

BETWEEN:

1. SMT. JAYAMMA W/O. LATE HONNEGOWDA AGED 65 YEARS RESIDING AT KEMPASAGARA VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130.

2. SHRI. MUNISWAMY S/O. LATE HONNEGOWDA AGED 45 YEARS RESIDING AT Digitally signed KEMPASAGARA VILLAGE by DEVIKA M KOTHAGERE HOBLI Location: HIGH KUNIGAL TALUK COURT OF KARNATAKA TUMAKURU DISTRICT-572 130.

3. SMT. VASANTHA D/O. LATE HONNEGOWDA W/O. LAKKANNAGOWDA AGED 34 YEARS RESIDING AT BANDIHALLI VILLAGE NITTUR HOBLI, GUBBI TALUK TUMAKURU DISTRICT-572 223.

…APPELLANTS (BY SMT. LAVANYA, ADVOCATE FOR SRI. KIRAN KUMAR P., ADVOCATE)

AND:

1. SHRI. GANGAIAH S/O. KEMPAHONNAIAH AGED 66 YEARS RESIDING AT KEMPASAGARA VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130.

2. SHRI. NANJUNDAIAH S/O. KEMPAHONNAIAH AGED 64 YEARS RESIDING AT KEMPASAGARA VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130.

3. SHIVAMMA W/O. LATE KEMPANNA D/O. LATE KEMPAHONNAIAH AGED 56 YEARS RESIDING AT SHETTIGERE VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130.

…RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.10.2017. PASSED IN R.A.NO.55/2017 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KUNIGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.10.2017 PASSED IN O.S.NO.42/2009 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, KUNIGAL.

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 learned counsel for the appellants. This second appeal is filed against the concurrent finding.

2. The factual matrix of the case of the plaintiffs before the Trial Court that father of the plaintiff Nos.2 and 3 and husband of the plaintiff No.1 by name Honnegowda and defendant Nos.1 and 2 are own brothers. Plaintiffs and defendants are the undivided joint family members. Suit schedule properties are undivided ancestral and joint family properties of plaintiffs and defendants. There is no partition between the plaintiffs and defendants either oral or written. The plaintiffs and defendants are in joint and constructive possession over the suit schedule properties and hence having a right over the suit schedule properties. The defendants in pursuance of the suit summons have appeared and filed the written statement admitting the relationship between the parties. However, specifically contended that already partition was taken place between the parties as per the panchayath paalupatti dated 27.01.1990, the same took place between plaintiffs, defendants and one Nanjamma who was the grandmother of the plaintiff Nos.2 and 3, mother of defendant Nos.1 and 2 and mother-in-law of plaintiff No.1. As per the said panchayath paalupatti, Katha and Pahani of properties made out in the name of the defendants by revenue authority and plaintiffs have suppressed the same. The Trial Court having considered the pleadings of the plaintiffs and defendants, framed the issue whether the plaintiffs proves that suit schedule properties are undivided ancestral and joint family properties and whether defendant Nos.1 and 2 prove that already there was a partition and whether plaintiffs are entitled for the relief of partition.

3. The Trial Court having considered both oral and documentary evidence available on record and particularly admission on the part of P.W.1 in the cross-examination, a categorical admission was made that in Ex.D.4, a recital was made that property came in a family partition and the same is an ancestral property and same stands in the name of the plaintiff No.1 and the same is in her possession and taking into note of specific admission in paragraph No.20 comes to the conclusion that already there was a partition and so also in paragraph No.25, co