- 1 - NC: 2025:KHC:1977 RFA No. 864 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL NO. 864 OF 2017 (PAR/INJ) BETWEEN: SRI PRASHANT SHOLAPURMATH S/O SURESH SHOLAPURAMATH, AGED 39 YEARS, R/AT "SUPBRABHATA" 5TH 'G' CROSS, P & T LAYOUT, OPP MEHRA EDUCATION SOCIETY, HORAMAVU, BANGALORE-560 043. …APPELLANT (BY SRI. S.KALYAN BASAVARAJ., ADVOCATE) AND: 1. SRI. M.PRAVEEN KUMAR, AGED ABOUT 39 YEARS, S/O SRI. S.MAHENDRA KUMAR, R/AT. NO.58/1, THAMBUCHETTY ROAD, COX TOWN, BANGALORE-560 005. 2. SMT.BHAGYA LAKSHMI D/O. M.RAMAIAH, AGED ABOUT 41 YEARS, 3. SMT. MANJULA D/O. M.RAMAIAH, AGED ABOUT 38 YEARS, 4. SMT. GIRIJA D/O. M.RAMAIAH, AGED ABOUT 33 YEARS, Digitally signed by THEJASKUMAR N Location: High Court of Karnataka - 2 - NC: 2025:KHC:1977 RFA No. 864 of 2017 5. SRI.M.RAMAIAH S/O. LATE MUNISWAMAPPA, AGED ABOUT 87 YEARS, RESPONDENTS 2 TO 5 ARE RESIDING AT HORAMAVU VILLAGE, BANASWADI POST, BENGALURU-560 043. …RESPONDENTS (R1 TO 3-SERVED AND UNREPRESENTED; V/O DATED:19.07.2023-APPEAL AGAINST R4-ABATED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC, 1908. THIS REGULAR FIRST APPEAL IS LISTED FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED AS UNDER: ORAL JUDGMENT Sri.S.Kalyan Basavaraj., counsel for the appellant has appeared in person. Notice to the respondents was ordered on 14.09.2017. A perusal of the office note depicts that respondents 1 to 3 are served and unrepresented. They have neither engaged the services of an advocate nor conducted the case as a party in person. 2. The short facts are these: - 3 - NC: 2025:KHC:1977 RFA No. 864 of 2017 The plaintiffs filed a suit against their father Ramaiah in O.S.No.15923/2003 on the file of XXVIII Addl. City Civil and Sessions Judge, Mayo Hall, Bengaluru seeking partition and separate possession. On the trial of the action, the Trial Court vide Judgment and Decree dated 29.06.2009 decreed the suit. The appellant has assailed the Judgment and Decree of the Trial Court in this appeal on several grounds as set-out in the memorandum of appeal. 3. Counsel for the appellant in presenting his arguments strenuously urged that the suit filed by the plaintiffs against their father seeking partition and separate possession is a collusive suit. He contended that the father Ramaiah had sold the property in favor of the appellant herein prior to filing of the suit and the appellant being a pre-suit purchaser was not made as a party to the original suit. He argued by saying that the Division Bench of this Court in R.F.A.No.686/2017 C/w. 759/2017 has set-aside the Judgment and Decree dated 29.06.2009 in O.S.N.15923/2003 and the Final Decree dated 19.03.2016 in F.D.P.No.25001/2010 and the suit in O.S.No.15923/2003 was restored. Counsel further submits that after the remand, the suit has been dismissed for non- - 4 - NC: 2025:KHC:1977 RFA No. 864 of 2017 prosecution. Counsel therefore, submits that an appropriate order may be passed. 4. Heard the arguments and perused the appeal papers with care. 5. It is not in dispute that the plaintiffs filed a suit against their father seeking partition and separate possession. Suffice it to note that Ramaiah - the father had sold the property in favor of the appellant herein before filing of the suit. Though the appellant was pre-suit purchaser, he was not made as a party to the proceedings in O.S.No.15923/2003. However, the Trial Court decreed the suit and granted share. This is unsustainable in law. The appellant was a pre-suit purchaser and the property was not available for partition. Moreover, after the remand, the suit has been dismissed for non-prosecution. A perusal of the E-court status of O.S.No.15923/2003 reflects that after the remand, the plaintiffs did not appear before the Trial Court and hence, the suit has been dismissed for non-prosecution on 08.03.2019. - 5 - NC: 2025:KHC:1977 RFA No. 864 of 2017 The Judgment and Decree dated 29.06.2009 passed by the XXVIII Addl. City Civil and Sessions Judge, Mayo Hall, Bengaluru in O.S.No.15923/2003 is set-aside. 6. Resultantly, the Regular First Appeal is allowed. Because of the disposal of the appeal, the pending interlocutory applications if any are disposed of. Sd/- (JYOTI MULIMANI) JUDGE TKN List No.: 1 Sl No.: 77.3