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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 4^TH DAY OF DECEMBER, 2021

BEFORE

THE HON’BLE MS. JUSTICE JYOTI MULIMANI

REGULAR SECOND APPEAL NO.5921 OF 2012 (INJ)

BETWEEN:

MALLAPPA AMRUTAPPA KABANUR

AGED ABOUT 63 YEARS,

OCC: AGRIL, R/O. INGALAHALLI,

TALUK HUBLI,

DIST: DHARWAD.

...APPELLANT

(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)

AND:

MAHANTAPPA AMRUTAPPA KABANUR

AGE: 48 YEARS, OCC: SERVICE & AGRIL,

R/O. INGALAHALLI, HUBLI TALUK – 592 681

WORKING AT KARWAR.

…RESPONDENT

(BY SRI.PRASHANT S. KADADEVAR,

SRI MOHAN A. LIMBIKAI AND

SRI SACHIN S. IRESHANAVAR, ADVOCATE)

THIS RSA IS FILED UNDER SECTION 100 OF THE

CODE OF CIVIL PROCEDURE, 1908.

THIS RSA POSTED FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

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JUDGMENT

Sri.Mallikarjunswamy B.Hiremath learned counsel for

appellant and Sri.Prashant S.Kadadevar learned counsel for

respondent have appeared in person.

2.

This appeal is from the Court of the First Addl.

Senior Civil Judge, Hubli.

3.

Appeal is posted for Admission after issuing

notice to respondents.

4.

For the sake of convenience, the parties are

referred to as per their rankings before the trial Court.

5.

The short facts are stated as under:

The suit property is landed property measuring 24

acres and 7 guntas in Block No.526 situated at Ingalahalli

Village in which 4 acres and 7 guntas of land is situated on

the northern side. The plaintiff and defendant are brothers

and they have divided their ancestral and joint family

properties between them. It is said that the plaintiff is

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Government servant and determined to purchase a land at

his native Village Ingalahalli out of the money accumulated

from the salary hence he requested defendant to join hands

for purchasing the land jointly. Accordingly, both plaintiff

and defendant purchased the suit property for Rs. 45,101/-

(Rupees Fourty five thousand one hundred and one only)

from one Gopalkrishna Saunsta Gondavalli on 20.07.1989.

Both of them cultivated the land. It is said that the

defendant made hectic efforts to enter his name in the

record of rights. Plaintiff demanded partition but defendant

refused hence, suit for partition was filed.

In response to the suit summons, the defendant

appeared through his counsel and filed written statement.

He denied the plaint averments. It was contended that

there was amicable settlement between the plaintiff and

defendant in respect of the suit property and the plaintiff

has given up his rights in respect of the suit property and

has executed a deed on 31.08.1999. It is also contended

that the plaintiff has voluntarily given up his rights hence

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plaintiff has not right over the suit schedule property.

Among other ground he prayed for the dismissal of the suit.

Based on the above pleadings, the Trial Court has

framed the following issues.

1. Whether the plaintiff proves that himself and

defendant jointly purchased suit property?

2. Whether the defendant proves that the plaintiff

by executing deed dt.31-08-1999 relinquished

his right over suit property in his favour?

3. Does he prove that suit is bad for non-joinder of

necessary parties?

4. Does he prove that plaintiff not included all

properties of family and hence suit is not

maintainable?

5. What decree or order?

To substantiate the claim, plaintiff got examined

himself as PW1 and produced three documents which were

marked as Ex.P.1 to Ex.P.3. On the other hand, defendant

got examined himself as DW.1 and produced eight

documents which were marked as Ex.D1 to Ex.D8.

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On the trial of the action, the suit of plaintiff’s came to

be partly decreed holding that the plaintiff is entitled for half

share in the suit schedule property. The relief of permanent

was rejected. Aggrieved by the judgment and decree, the

defendant preferred appeal before the First Appellate Court.