- 1 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI REGULAR FIRST APPEAL NO. 200174 OF 2023 (PAR/POS) BETWEEN: 1. SYED JAVEED S/O SYED GOUS NIZAMI, AGED ABOUT 44 YEARS, OCC: BUSINESS, R/O KHAZI GALLI, BASAVAKALYAN, DISTRICT BIDAR -585327. …APPELLANT (BY SRI. R. J. BHUSARE, ADVOCATE) AND: 1. MOHD. KHAMRUDDIN S/O MOHS. KHAJAMIYAN PATANGWALE, AGED ABOUT 43 YEARS, OCC: BUSINESS, R/O SHAH HUSSAIN LOCALITY, BASAVAKALYAN, DISTRICT BIDAR -585327. …RESPONDENT (BY SRI. SACHIN M. MAHAJAN, ADVOCATE) Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 43 RULE 1 OF THE CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, BASAVAKALYAN IN O.S. NO. 63/2019 DATED 17.09.2021 AND CONSEQUENTLY DISMISS O.S.NO.63/2019, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI ORAL JUDGMENT and Order on I.A.No.1/2023 filed under Section 5 of the Limitation Act (PER: HON'BLE MS JUSTICE J.M.KHAZI) In this appeal filed under Section 96 read with Order 43 Rule 1 CPC, defendant has challenged the judgment and decree passed by the Trial Court granting plaintiff half share in the suit schedule property by metes and bounds with a provision for space for common staircase in between. - 3 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. 3. It is the case of the plaintiff that he and defendant are co-owners of suit schedule property consisting of constructed shops with space for staircase. Originally plaintiff, defendant and one Mohammad Khan jointly purchased vacant site, wherein suit shops are constructed and other open space from its previous owners Mohd. Nasrullah and others through registered sale deed dated 05.08.2010. After the purchase, they have sold open space on the western and southern side of suit shops under registered sale deeds dated 16.09.2011 in favour of Nayeemuddin and others and Mahiboob Pasha and others. 4. On 16.09.2011 itself Mohammad Khan the other co-owner has relinquished his share in the suit property by receiving a sum of Rs.20,000/- from plaintiff and defendant and executed registered replenishment deed. Since then plaintiff and defendant are the co-owners - 4 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 in joint possession and enjoyment of open space measuring 30x26 feet. Khata was made out in their joint names. They have constructed two shops with staircase after obtaining licence and approved plan. 5. Since, recently defendant has turned hostile and trying to transfer suit schedule property by way of lease in favour of others without consent of the plaintiff. He has also denied right of the plaintiff over suit schedule property and hence, the suit. 6. After due service of summons, defendant has appeared before the Trial Court. However, he failed to file written statement. 7. At the trial plaintiff is examined PW.1. He has relied upon Exs.P1 to 16. 8. Defendant has not led any evidence on his behalf. - 5 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 9. Vide the impugned judgment and decree, the Trial Court decreed the suit granting half share in suit schedule property. 10. Aggrieved by the same, defendant has filed this appeal contending that, the order under appeal is illegal and contrary to the evidence on record. Though defendant appeared through Advocate, due to COVID pandemic, he could not file written statement. Without looking into the documents produced by the plaintiff and on the ground that defendant has not entered into the witness box, the Trial Court has decreed the suit. The plaintiff is required to prove his case on the strength of his own and not on the weakness of defendant. Suit for partition and separate possession is not maintainable since the parties are not members of the same family. 10.1. In none of the documents, the specific share of the plaintiff is specified and therefore the Trial Court is not justified in holding that plaintiff is entitled for half share. In the absence of seeking relief of declaration suit - 6 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 for partition is not maintainable. The entire investment is made by the defendant for construction of shops. He has let out the shops and collecting rent since 5 years. Plaintiff is not entitled for any share in the suit schedule property. Defendant requires reasonable opportunity to prove his defence and pray to set aside the impugned judgment and decree and remand the case for fresh trial. 11. Defendant has filed I.A.No.1/2023 under Section 5 of the Limitation Act. 12. On the other hand learned counsel for plaintiff supported the impugned judgment and decree. He would submit that despite providing reasonable opportunity, defendant has not chosen to file written statement. He has not challenged the order passed by the Trial Court refusing to extend time for filing written statement. He has also not led any defence evidence. Consequently, the entire case of the plaintiff remained unchallenged. Considering the uncontraverted oral and documentary evidence placed on record, the Trial Court has rightly decreed the suit. The - 7 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 defendant has also not explained inordinate delay of 500 days in filing this appeal and pray to dismiss the appeal as well as I.A.No.1/2023. 13. Heard arguments and perused the record. 14. Thus, plaintiff and defendant who are not related, but friends, purchased a vacant site along with one Mohammad Khan. Consequently, they became the joint owners of the said property. Out of the same, all the three have sold two separate portions through sale deeds of even date 16.09.2011. On that day Mohammad Khan has relinquished his right over the remaining extent retained by them. As a result of which, plaintiff and defendant remained the joint owners in possession and enjoyment of the remaining extent. 15. Plaintiff claimed that he and defendant invested and constructed shop premises in the property retained by them which is the suit schedule property. Alleging that oflate defendant has became to hostile to him and trying - 8 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 to lease the shop premises situated in the suit schedule property to his adverse interest plaintiff has sought for partition of half share in the suit schedule property. Since the suit schedule property and the remaining extent which was alienated was jointly purchased by plaintiff, defendant and Mohammad Khan and after the said Mohammad Khan relinquished his right over the said property, it is plaintiff and defendant who became the joint owners of suit schedule property. Therefore, suit for partition is certainly maintainable. In order to claim partition it is not necessary that parties should be related as claimed by the defendant in the appeal memo. 16. The claim of the plaintiff that he and defendant are entitled for half share each is not disputed by the defendant by filing written statement examining plaintiff and also leading defence evidence. It is pertinent to note that, vide order dated 21.08.2019 Trial Court granted ex- parte temporary injunction against the defendant restraining him from alienating the suit schedule property. - 9 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 17. As evident from the order sheet, after due service of summons defendant has appeared on 19.10.2019. From that day the case was posted to 12.12.2019 for filing written statement. On that day learned counsel for the defendant has filed application under Section 148 of CPC to extend the time for filing the written statement. The said application was allowed with an observation that 90 days time has not elapsed and time was extended till the next date and case was adjourned to 13.02.2020. On that day once again time was sought on behalf of defendant for filing written statement. Observing that already statutory period is over, the Trial Court has refused to grant further adjournment and noted that written statement is not filed. 18. Admittedly defendant has not challenged the said order. Defendant has claimed that due to COVID pandemic he could not file written statement. However, as per the Circular No.HCLC 59/2020 dated 19.01.2022, which is based on the decision of the Hon’ble Supreme - 10 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 Court in Miscellaneous Application No.665/2021 in SMW (C)No.3/2020, the period from 15.03.2020 to 28.02.2022 is to be excluded from calculation of period of calculation. Since by 13.02.2020 the time for filing written statement was over, which is before 15.03.2020, the defendant cannot claim that due to COVID he could not file the written statement. 19. Thereafter the case was posted for plaintiff’s evidence. In the light of the fact that defendant has not filed written statement, the Trial Court has taken the cross examination of plaintiff as nil and by recording that defendant’s evidence is also nil, the Trial Court has proceeded to pronounce the judgment by decreeing the suit. 20. Now coming to I.A.No.1/2023, it is also relevant to note that there is a delay of 500 days in filing the present appeal. The reasons assigned by the defendant for the delay is that there was COVID pandemic and the wife of his brother was admitted to hospital due to COVID and - 11 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 for this reason, he could not attend the Court and know about the decree being passed in favour of the plaintiff. However, the defendant has not produced any evidence to establish that his sister-in-law who was admitted to hospital and that was the reason for him to challenge the decree in time. 21. The date of judgment is 17.09.2021. As per the Circular dated 19.01.2022 referred to supra, the period exempted is 15.03.2020 to 28.02.2022. The defendant has applied for certified copy of the judgment 22.09.2023 and received the copy on 04.10.2023. Appeal is filed on 11.08.2023. Therefore, out of the above period, the defendant is entitled for benefit of the Circular from 17.09.2021 to 28.02.2022 and from 22.09.2023 to 04.10.2023 which comes to 177 days. There is delay of 500 days in filing the appeal. If the benefit of 177 days is given to the defendant, he has no explanation for the delay of remaining 323 days in filing the appeal. - 12 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 Therefore, the defendant is not entitled for condonation of 323 days out of delay of 500 days. 22. The oral testimony of plaintiff coupled with the documents relied upon by him clearly establish the fact that he is co-owner of suit schedule property and on account of strained relationship between him and the defendant, he is seeking partition of half share in the suit schedule property. In the sale deed dated 23.07.2010, there is no specific averments as to the amount invested by plaintiff, defendant and Mohammad Khan for acquiring the property in question. Of course they have sold two bits out of the said property through two separate sale deeds dated 14.09.2011 for Rs.8,97,000/- and Rs.5,28,000/- and retained the suit schedule vacant site. On the same day i.e. 14.09.2011 Mohammad Khan has relinquished his right over suit schedule property by receiving Rs.20,000/-. 23. Thereafter, plaintiff and defendant have constructed the suit schedule shops. In the absence of specific evidence by the defendant, the Court is left with - 13 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 no other alternative, but to accept the contention of the plaintiff that both of them are entitled for equal share in the schedule property. Despite getting reasonable opportunity to come up with any specific defence, the defendant has failed to file written statement and also lead evidence. The conduct of the defendant clearly indicates that he is interested in dragging on the matter rather than defend himself with concrete defence. 24. Thus, both on merit as well as on delay, the appeal is liable to be dismissed and accordingly the following: ORDER (i) I.A.No.1/2023 filed under Section 5 of the Limitation Act, is rejected. (ii) Consequently, the appeal is dismissed both on the ground of delay and on merits. - 14 - NC: 2025:KHC-K:1377 RFA No. 200174 of 2023 In view of the disposal of main appeal, pending IAs, if any, do not survive for consideration and same shall be disposed of. Sd/- (J.M.KHAZI) JUDGE SDU LIST NO.: 1 SL NO.: 27