Karnataka High Court
Smt Prema W/O Shankaragouda Patil vs Sri Sagar S/O Ravindragowda Patil on 8 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2025:KHC-D:11471-DB
RFA No. 100528 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 8TH DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO.100528 OF 2022 (DEC/PAR)
BETWEEN:
1. SMT. PREMA W/O. SHANKARAGOUDA PATIL
AGE: 48 YEARS, OCC: HOUSE HOLD,
R/O. BANASHAKARI BADAVANE,
VIDYANAGAR, HUBLI-580021.
2. SMT. VEENA W/O. SHRISHAILGOUDA PATIL
AGE: 46 YEARS, OCC: HOUSE HOLD,
R/O. MUNIRABAD (RS), HITNAL ROAD,
TQ AND DIST: KOPPAL-583234.
3. SMT. MAMATA @ SUSHMA W/O. MALI
AGE: 42 YEARS, OCC: HOUSE HOLD,
SAMREEN
AYUB R/O. KADABIGALLI, BAILHONGAL,
DESHNUR DIST: BELAGAUM-591102.
Digitally signed by
SAMREEN AYUB ...APPELLANTS
DESHNUR
Location: HIGH
COURT OF (BY SRI. MAHESH WODEYAR, ADVOCATE)
KARNATAKA
DHARWAD BENCH
AND:
1. SRI. SAGAR S/O. RAVINDRAGOWDA PATIL
AGE: 22 YEARS, OCC: STUDENT,
PRATHAM SHETTY LANE, BOMMAPUR,
HUBLI-580023.
2. SRI. PARVATHAGOUDA
MAHADEVAGOUDA PATIL,
SINCE DECEASED BY HIS LR's
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NC: 2025:KHC-D:11471-DB
RFA No. 100528 of 2022
HC-KAR
RESPONDENTS NO.3 TO 4.
3. SRI. SUNILGOUDA
S/O. PARVATHAGOUDA PATIL,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. PRATHAM SHETTY LANE,
BOMMAPUR, HUBLI-580023.
4. SMT. PARVATIDEVI PARVATHAGOUDA PATIL
AGE: 73 YEARS, OCC: HOUSEHOLD WORK,
R/O. PRATHAM SHETTY LANE,
BOMMAPUR, HUBLI-580023.
5. SRI. AJIT
S/O. PARASHURAM BEKKINAKANNAVAR,
AGE: 23 YEARS, OCC: STUDENT,
R/O. GANGADHAR NAGAR,
SETTLEMENT, HUBLI-580031.
6. THE BRANCH MANAGER
VIJAYA BANK, BANDIWAD BRANCH,
TQ: HUBLI-580020.
...RESPONDENTS
(BY SRI. SRI. VIJAYENDRA BHIMAKKANAVAR, ADV. FOR R3;
R2 IS DECEASED-R3 AND R4 ARE LR's OF DECEASED R2;
NOTICE TO R4 AND R6 ARE SERVED;
NOTICE TO R1 AND R5 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC PRAYING
TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND
DECREE DATED 19.01.2018 PASSED BY THE I ADDITIONAL
SENIOR CIVIL JUDGE HUBBALLI IN O.S.NO.216/2013 AND
CONSEQUENTLY DECREE THE SUIT AS PRAYED FOR, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
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NC: 2025:KHC-D:11471-DB
RFA No. 100528 of 2022
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal by the plaintiffs in O.S.No.216/2013 is directed against the impugned judgment and decree dated 19.01.2018 passed by the I Additional Senior Civil Judge, Hubballi1 whereby the said suit filed by the appellants - plaintiffs against the respondents - defendants for partition and separate possession of their alleged share in the suit schedule immovable properties was dismissed by the Trial Court. So also, the review petition filed by the appellants - plaintiffs in Misc.No.16/2018 under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure, 19082 seeking review of the impugned judgment and decree was also dismissed by the Trial Court.
2. Brief facts giving rise to the present appeal are as under:
The appellants - Plaintiffs are the daughters of defendant No.2 and defendant No.4, while defendant No.1 is the son of Raveendra Gouda, deceased brother of plaintiffs and defendant No.3 is the brother of the plaintiffs. The appellants - plaintiffs 1 Hereinafter referred to as "the Trial Court" for short 2 Hereinafter referred to as "the CPC" for short -4- NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR instituted the aforesaid suit for partition and separate possession of their alleged share in the suit schedule immovable properties comprising of 5 items of landed properties described as plaint 'A' schedule properties and 3 items of sites / plots / open spaces described as plaint 'B' schedule properties. The appellants -
plaintiffs also sought for declaration that the sale deed said to have been executed by the mother of defendant No.1 in favour of defendant No.5 and the gift deeds dated 22.02.2007 and 30.03.2007 executed by defendant No.5 in favour of defendant No.6 were null and void and not binding upon the appellants -
plaintiffs and for other reliefs.
3. The respondents - defendant Nos.1 to 4 entered appearance along with defendant Nos.6 and 7 and contested the suit, disputed and denied the various allegations and claims made by the plaintiffs.
4. Pursuant to the pleadings of the parties, the Trial Court framed the following issues:
(1) Whether the plaintiffs prove that the sale deed dt.22-2-2007 and registered on 4-4-2008 executed between deceased Kavita and defendant -5- NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR No.5 is declared as null and void and not binding on them?
(2) Whether the plaintiffs further prove that the gift deed dt.30-3-2019 is illegal, null and void and not binding on them?
(3) Whether the plaintiffs prove that the charge created by defendant No.5 in favour of defendant No.7 in respect of suit schedule 1 to 3 properties are declared as null and void and not binding on them?
(4) Whether the plaintiffs further prove that the properties are available for partition?
(5) Whether the plaintiffs are entitled the mesne profit?
(6) Whether the plaintiffs are entitled the relief of declaration and partition as prayed for?
(7) What order or decree?
ADDITIONAL ISSUE DT.19-9-2014:
(1) Whether defendant No.4 proves that he is entitled share in suit property, if so to what extent?
ADDITIONAL ISSUE DT.2-12-2016:
(2) Whether the defendant No.6 proves that the suit suffer from mis-joinder and non-joinder of necessary parties?-6-
NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR RECASTED ADDL. ISSUE DT.03-1-2018:
(1) Whether defendant No.6 proves that defendant No.5 is the bonafide purchaser of suit schedule properties Sl.No.1 to 3 for valuable consideration?
ADDITIONAL ISSUES DT.03-1-2018:
(1) Whether defendant No.6 proves that suit is barred by law of limitation?
(2) Whether defendant No.6 proves that suit is hit by non-inclusion of all the joint family properties as contended in the written statement?
5. Plaintiff Nos.1 and 2 got themselves examined as PWs1 and 2 and documentary evidence at Ex.P1 to P17 were marked. Respondent No.7 - defendant No.7 (Bank Manager) examined himself as DW1, while defendant Nos.6 and 2 got themselves examined as DWs2 and 3 respectively and documentary evidence at Ex.D1 to D13 were marked on their behalf.
6. It is a matter of record and an undisputed fact that both parties adduced oral and documentary evidence on all issues including the issues on merits as well as issues relating to non-joinder of necessary parties and non-inclusion of all alleged -7- NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR joint family properties. However, the Trial Court proceeded to pass the impugned judgment and decree, without recording any finding on the merits of the claim of the parties, but dismissing the suit by coming to the conclusion that the suit was bad for non-joinder of necessary parties and non-inclusion of all alleged joint family properties, without recording any finding on the merits of the claims of the parties. Aggrieved by the impugned judgment and decree, the appellants - plaintiffs are before this Court by way of the present appeal.
7. Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.
8. Learned counsel for the appellants - plaintiffs would invite our attention to the impugned judgment and decree, in order to point out that after having recorded a finding that the suit was bad for non joinder of necessary parties and non- inclusion of all the alleged joint family properties, it is essential for the Trial Court to provide an opportunity to the parties, including the appellants to take steps to include all the properties and thereafter proceed to decide the rival claims on merits. It is therefore submitted that the impugned judgment and decree -8- NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR passed by the Trial Court deserves to be set aside and the matter be remitted back to the Trial Court for reconsideration afresh in accordance with law. In support of his submission, he places reliance upon the decision of the Co-ordinate Bench of this Court in the case of Niroop D.J. v. D.A.Jayaramegouda3.
9. Per contra learned counsel for the respondents does not dispute that the defendants had taken up a specific contention that the suit is bad for non-inclusion of all alleged joint family properties and that the Trial Court did not record any finding on merits, but dismissed the suit only on the ground that all alleged joint family properties had not been included, as a result of which, the suit was not maintainable in law. It was therefore submitted by the learned counsel for the respondents that appropriate orders may be passed in the facts and circumstances of the instant case by reserving liberty in favour of the appellants as well as the respondents to take necessary steps to include all alleged joint family properties, by setting aside the impugned judgment and decree and remitting the 3 HCR 2024 Kant 21 -9- NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR matter back to the Trial Court for reconsideration afresh in accordance with law.
10. In the judgment of the Co-ordinate Bench of this Court in the case of Niroop D. J3 (supra) it has held as under:
18. In a suit for partition, all the necessary parties and also all the joint family properties have to be brought in for effecting the partition by metes and bounds. The Trial Court is required to determine the property given to the plaintiff after his marriage and whether the joint family is in existence or not and what are the self-
acquired properties of the plaintiff and also defendant No.1. Unless these properties are included and also D.T.Goutham is arrayed as one of the defendants, the evidence on record is incomplete and not sufficient to adjudicate the dispute between the parties effectively.
19. In a suit for partition, when the Trial Court comes to the conclusion that the plaintiff has omitted certain properties, which could have been specifically mentioned in the written statement, it ought to have deferred the judgment and directed the plaintiff to include those properties and also array D.T.Goutham as party and then decide the case on merits. The material on record does not point out that the Trial Court has given such an opportunity to implead necessary parties and include the properties before pronouncing the judgment. Hence, the impugned judgment is incomplete and it is not decided on merits.
11. As can be seen from the aforesaid judgment of the Co-ordinate bench of this Court, the judgment and decree of the Trial Court was set aside and the matter was remitted back to the Trial Court for reconsideration afresh by providing an
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NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR opportunity to the parties to include all alleged joint family properties and other parties who are not impeded as parties to the proceedings.
12. In the instant case, while dismissing the suit, the Trial Court did not express any opinion or recorded any finding as regards the merits of the claims of the parties, but proceeded to dismiss the suit on the sole ground that all alleged joint family properties had not been included among the suit schedule properties. While arriving at the said conclusion, the Trial Court held as under :
"14. When I gone through the entire documents once it is crystal clear that other than suit schedule properties number of other properties are available belongs to the joint family properties of plaintiffs and defendants 1 to 4. Those properties are shown in Ex.P-18 i.e., Sy.No.152/A, 152/9, 170/2, 35/1, 39/1, 72 (RS 207), 193/1A. Even though some of these properties are subject matter of OS 37/1993 and said suit filed by Smt.Sitawwa @ Partivibai against present defendant No.2 and his brothers and sisters but as per the judgment and decree defendant No.2 being a father of plaintiffs 1 to 3 got 1/5th share, out of the said suit property but those properties not included in the present suit. In addition to that, plaintiffs have not included RS No.30/1 measuring 8 acres, 28 guntas, RS No.35/1 measuring 7 acres, 10 guntas, RS No.170/2 measuring 11 acres, RS No.39/1 measuring 3 acres, 18 guntas and CTS No.1365 in this suit and in respect of those properties defendants have produced RTCs as per Ex.D-4 and 5 etc as discussed supra and Sy.No.42/6 also standing in the name of Parashuram. In this aspect learned counsel for the plaintiff vehemently aruged that since there is a FDP pertaining to OS 37/1993 and
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NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR therefore not included but said facts not pleaded in the plaint. In the absence of pleading whatever the amount of evidence or contention taken by the plaintiff cannot be accepted in the eye of law. Moreover other than suit property of OS 37/1993 some by defendant No.6 also available but plaintiffs have not other properties as per the documents and contention taken included those properties and hence arguments canvassed by plaintifsf counsel cannot be accepted in the eye of law. On the contrary defendant No.6 has specifically pleaded in his written statement para-11 that what are all the properties not included in this suit and in support of his contention they have produced documents as discussed supra. Further in the cross-examination of PW-1 recorded on 28-3-2017 he has admitted as follows:
"We have not included all the ancestral family properties in this suit. Some of the properties mentioned in the plaint are the familyl properties. We have no any impediment to include all the family properties in this suit."
When some other properties belongs to the plaintiffs family which are standing in the name of defendant No.2 and other family members of plaintiffs are available and not included in the above suit and thus no impediment to include all those properties the suit filed by plaintiffs itself is hit by partial partition. Admittedly, plaintiffs and defendants 1 to 4 are governed by Hindu law. Under the Hindu law if a family member wants to seek partition he has to include all the joint family properties in an one hot potch. If any one of the property not included without any proper reason or pleading to that effect the suit of the plaintiff itself hit by partial partition. If suit is hit by partial partition suit itself is not maintainable as per the observation of Hon'ble Apex Court in decision reported in ILR 1998 681 (Sri Tukaram v/s Sambhaji & others), AIR 2008 (NOC) 1057 (A.P.) (N.Jangi Reddy & others V/s Yellaram Narsimha Reddy & others),. Whereas in the present case on hand also plaintiffs have not included all the joint family properties even though specific pleading taken by defendant No.6 and specific issue framed to that effect and opportunities also given to
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NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR plaintiffs to include those properties but not included and no proper explanation. Hence, suit itself not maintainable. When suit of the plaintiffs itself is not maintainable question of giving finding that whether suit properties are available for partition or not at this stage does not arise, because unless and until plaintiffs have include all the properties the suit for partial partition is not at all maintainable as discussed supra. In the result, I answer issue No.4 does not survive for consideration and additional issue No.2 framed on 3-1-2018 in the affirmative.
18. Issues 5, 6 and additional issue dt.19-9- 2014: Since these issues are inter-connected to each other and hence these issues are taken up for answer together to avoid repetition of facts.
In view of the findings on above issues when suit of the plaintiffs itself is not maintainable for want of non- inclusion of all the joint family properties inspite of sufficient opportunity given to plaintiffs by framing issues to that effect and hence question of plaintiffs and defendant No.2 are entitle the relief of declaration as well as partition and relief of mesne profits does not arise at this stage. Moreover there is no need to more discuss on these issues. When suit of plaintiffs itself is not maintainable in view of the observation of Hon'ble High Court of Karnataka in the above cited decision question of plaintiffs and defendant No.2 are entitle any relief as prayed in the above suit at this stage does not arise. Moreover in one stretch defendant No.2 has denied the case of plaintiffs in his written statement whereas in the evidence he has admitted the suit of plaintiffs. But as per Ex.D-8 there is a partition between two sons and defendant No.2. Hence the above inconsistant defence taken by defendant No.2 itself shows that the plaintiffs and defendants 1 to 4 are colluded with each other and filed this suit without inluded all their family properties and only they have concentrated alienated properties. Under such circumstances at this stage question of plaintiffs are entitle the relief as sought for also does not arise. Hence, I answer issues 5 and 6 and additional issue framed on dt.19-9-2014 in the negative."
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NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR
13. As is clear from the findings recorded by the Trial Court, that the sole basis on which the suit came to be dismissed was by holding that all alleged joint family properties have not been included by the appellants - plaintiffs. Consequently, though several contentions have been urged by both the sides in support of their respective claims, without expressing any opinion on the merits / demerits of the rival contentions and in order to provide an opportunity to the parties to seek inclusion of all alleged joint family properties and in order to prevent multiplicity of proceedings and duplication of evidence and in light of the joint submission made by both sides, we deem it just and appropriate to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh in accordance with law by issuing certain directions.
14. In the result, the following:
ORDER
1. The appeal is hereby allowed.
2. The impugned judgment and decree dated 19.01.2018 passed in O.S.No.216/2013 by the Trial Court is hereby set aside and the matter is
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NC: 2025:KHC-D:11471-DB RFA No. 100528 of 2022 HC-KAR remitted back to the Trial Court for reconsideration afresh in accordance with the law.
3. The parties are directed to appear before the Trial Court without awaiting further notice from the Trial Court on 16.10.2025.
4. Liberty is reserved in favour of the parties to file additional pleadings, amended pleadings and take appropriate steps and / or take appropriate steps to seek inclusion of alleged joint family properties as additional properties to the suit.
5. Liberty is also reserved in favour of all the parties to adduce additional oral and documentary evidence in support of their respective claims.
6. All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
7. The registry is directed to transmit the Trial Court Records back to the Trial Court forthwith.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE Sd/-
(C.M. POONACHA) JUDGE EM Ct:vh List No.: 1 Sl No.: 35