- 1 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL REGULAR FIRST APPEAL NO.1331/2015 (PAR) BETWEEN: SRI. DASAPPA AGED ABOUT 68 YEARS S/O LATE GOPALASHETTY R/AT-FORT, DEVANAHALLI TOWN & TALUK BANGALORE RURAL DISTRICT-562110. …APPELLANT (BY SRI. S. SREEVATSA, SR. ADV., FOR SRI. S.D.N. PRASAD, ADV.,) AND: 1. SMT. JAYAMMA AGED ABOUT 86 YEARS W/O NARAYANA SHETTY R/AT. MUTTUGADAHALLI VILLAGE KAIWARA HOBLI, CHINTAMANI TALUK CHIKKABALLAPURA DISTRICT-562101. 2. SRI. NANJAPPA AGED ABOUT 79 YEARS S/O THAMMANNA SHETTY. Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 3. SRI. NARAYANASWAMY AGED ABOUT 58 YEARS S/O LATE GOPALASHETTY. 4. SRI. VENKATARAMANAPPA AGED ABOUT 58 YEARS S/O LATE GOPALASHETTY. 5. SRI. SRINIVASA AGED ABOUT 63 YEARS S/O LATE SEETHARAMAIAH. 6. SMT. KITTAMMA AGED ABOUT 84 YEARS W/O VENKATAPPA D/O LATE RANGAPPA. THE RESPONDENT NO.2 TO 6 ARE R/AT. FORT, DEVANAHALLI TOWN & TALUK BANGALORE RURAL DISTRICT-562110. 7. SMT. SAROJAMMA AGED ABOUT 68 YEARS W/O SURYAPRAKASH D/O RANGAPPA R/AT. KAMTI STREET SHIDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT. 8. SMT. LAKSHMAMMA AGED ABOUT 68 YEARS W/O GURAPPA D/O LATE GOPALA SHETTY R/AT. THANDRAMARANAHALLI VILLAGE CHIKKABALLAPURA TALUK AND DISTRICT. 9. SRI. SYED SULEMAN AGED ABOUT 74 YEARS S/O LATE SYED OSMAN - 3 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 R/AT. NO. 46, PROMENDE ROAD SIVANASHETTY GARDEN BANGALORE-560 042. …RESPONDENTS (BY SRI. GNANA MURTHY C, ADV., FOR R1 SRI. V. VIJAYASHEKARA GOWDA, ADV., FOR R7 NOTICE TO R2 TO R9 IS D/W V.C.O.DT:07.04.2022) THIS RFA IS FILED UNDER SEC. 96 R/W ORDER XLI RULE 1 OF THE OF CPC., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 01.07.2014 IN O.S.NO.1149/2007, PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT DEVANAHALLI, BY ALLOWING THIS APPEAL. PASS SUCH OTHER ORDERS AS THIS HON'BLE COURT MAY DEEM FIT IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL - 4 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) Defendant No.2 is before this Court, in this RFA, assailing the legality and correctness of the judgment and decree dated 01.07.2014 passed in O.S.No.1149/2007 on the file of the Senior Civil Judge and JMFC, Devanahalli (for short, 'the trial Court'). 2. For the sake of convenience, the parties herein are referred to as per their ranks before the trial Court. 3. Brief facts of the case are as follows: The plaintiff who claims to be the daughter of one Dasappa Shetty had sought partition and separate possession of one half (1/2) share of 3 acres 6 guntas of land situated in Sy.No.347 of Kasaba Village, Devanahalli Taluk. It was contended that the plaintiff is the daughter of Dasappa Shetty and one Thayamma and that the suit schedule property is the ancestral joint family property of the plaintiff and defendant Nos.1 to 8. It was contended - 5 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 that the property was acquired by plaintiff's grandfather Venkataramana Shetty out of the joint family funds and that the plaintiff and defendants were in joint possession and enjoyment of the suit schedule property. It was contended that the plaintiff's brothers got 1 acre 32 guntas and defendant No.5 got 1 acre 10 guntas out of the properties and defendant Nos.1, 3 & 4 and their wives and children have alienated a portion of the suit schedule property in favour of defendant No.9 through a registered sale deed of the year 2006. It was, therefore, contended that the plaintiff is entitled to 1/2 share of Dasappa Shetty's branch and 1/3rd share in the suit schedule property and for separate possession of the said extent of the property. 4. Though notice of the suit was served on all the defendants; defendant Nos.1 and 6 appeared in-person before the trial Court and vakalath was filed on behalf of defendants No.2, 7 & 9. Defendants No.3 to 5 and 8 were placed exparte. The defendants, who appeared in-person, - 6 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 and through counsel, did not choose to file any written statement in the suit and did not contest the case. 5. The trial Court based on the pleadings, framed the following issues for its consideration: "1) Whether the plaintiff proves that, she is entitled her legitimate share in the suit schedule property? 2) Whether the plaintiff proves that three sale deeds dated 23-11-2006 executed by the defendants No.1, 3 and 4 in favour of 9th defendant is not binding on her share?" 6. In order to substantiate their claim, the plaintiff examined herself as PW-1 and got marked the documents as Exs.P1 to Ex. P18. On the other hand, defendants neither adduced any evidence nor produced any documents. - 7 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 7. The trial Court based on the pleadings, oral and documentary evidence, held that out of 1/2 share of Dasappa Shetty's branch, the plaintiff is entitled to 1/3rd share in the suit schedule property and defendants No.5 to 7 are jointly entitled for 1/2 share in the suit schedule property as representatives of Nanjappa's branch. 8. The learned Senior Counsel appearing for the appellants contended that it was on account of an understanding between the parties that the suit would be withdrawn by the plaintiff that the defendants, who had entered appearance, had not contested the suit or filed written statement. It is further contended that there was an earlier partition suit between the branches of the family where the plaintiff's father Dasappa Shetty was a party. In the said suit, it had been specifically held that Dasappa Shetty's branch of the family i.e., legal representatives of Dasappa Shetty, are entitled only to 1 acre 32 guntas out of the suit schedule property. It is submitted that since the plaintiff claims through Dasappa Shetty, her contentions - 8 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 with regard to the entire extent of 3 acres and 6 guntas of property could not be countenanced in the first place. It is further contended that the plaintiff has a sister named Lakshmidevamma or Lakshmamma who was not made a party to the suit. It is contended that if a chance is given to the defendants to place the written statement on record, they could place all these aspects on record and the matter could be decided on merits. It is submitted that the decreeing of the suit without the contentions of the defendants being on record, has led to total miscarriage of justice and irreparable injury to the appellant. 9. Per contra, the learned counsel appearing for respondent No.1-plaintiff would contend that all the defendants had been duly served with notice in the suit and some of them had also entered appearance in person or through counsel. It is submitted that it is after giving the defendants all necessary opportunity to file the written statement and in view of the fact that none of them choose to contest the suit that the suit had been decreed - 9 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 as prayed for. It is contended that the plaintiff is now aged 96 years and that the attempt of the defendants is only to deny the rightful share of the plaintiff, who is the daughter of the third wife of Dasappa Shetty. It is submitted that some of the properties have been alienated and that the decree is perfectly legal and valid and that plaintiff should be permitted to enjoy the benefits of the decree at least in the twilight years of her life. 10. In view of the rival contentions urged by the learned counsel for parties, the following points would arise for our consideration: a) Whether the appellant has made out any case to interfere with the impugned judgment and decree passed by the trial Court ? b) Whether the suit is to be remanded and the appellant-defendant No.2 is entitled and be permitted to file the written statement? - 10 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 11. We have considered the contentions advanced on either side. We notice that the appellant contends that there was an earlier partition deed executed on 18.12.2002 by which the branch of Dasappa Shetty was allotted an extent of 1 acre 32 guntas of land out of the suit schedule properties. O.S.No.416/1996 was filed by one Kittamma and Sarojamma before the Additional Civil Judge (Jr.Dvn.) & JMFC., Devanahalli, in which the plaintiff or her mother were not parties. It appears that the suit was dismissed taking notice of the partition deed dated 18.12.2002 and holding that the legal representatives of Dasappa Shetty are the owners in respect of 1 acre 32 guntas out of the suit schedule property. The appeal preferred as against the said judgment in R.A.No.34/2007 was also dismissed. We further notice that the contention now raised that the plaintiff, Jayamma has a sister called Lakshmidevamma or Lakshmamma who is not a party to the suit filed by her, also does not appear to be disputed by the parties. In the above factual situation and in view of the reliefs claimed in the suit in respect of the entire - 11 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 suit schedule properties which have an extent of 3 acres and 6 guntas, we are of the opinion that the contentions of the appellant-defendant requires to be considered. 12. However, we also notice that the suit is of the year 2007, the appeal is one filed in the year 2015. It is also not in dispute that the defendants had been served with notice and some of them had also recorded their appearance before the trial Court. However, we are of the opinion that the decreeing of the suit without considering the contentions of the defendants has led to a manifest failure of justice. More so, when the dispute between the parties is with regard to the valuable immovable property. Therefore, in the interest of justice, we are of the opinion that the defendants are entitled to an opportunity to file their written statements and adduce evidence before the trial Court. 13. However, in view of the fact that the suit was filed in the year 2007 and the appeal has been pending since 2015, we are also of the opinion that it is only on - 12 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 strict terms that the relief now sought for by the learned Senior Counsel appearing for the appellant can be granted. 14. We, therefore, order that on payment of costs of Rs.1,50,000/- (Rupees One Lakhs and Fifty Thousand only) to the plaintiff-respondent No.1, the appeal shall stand allowed and the judgment and decree of the Senior Civil Judge & JMFC., Devanahalli, dated 01.07.2014 in O.S.No.1149/2007 shall stand set aside and the matter shall stand remanded to the trial Court for a consideration on giving an opportunity to the defendants to file written statement and to adduce evidence. However, we make it clear that if the costs, as ordered, are not paid by Demand Draft in the name of plaintiff - Jayamma and delivered to the counsel within one month from today, the directions shall stand automatically vacated and the judgment and decree under appeal shall be confirmed. 15. In pursuance to the order of remand, as agreed by the parties, the parties shall appear before the trial Court on 10.02.2025. The defendants who are desirous of - 13 - NC: 2025:KHC:1958-DB R.F.A. No.1331/2015 filing written statement shall do so within a period of two weeks there from. 16. The trial Court shall endeavour to consider and dispose of the O.S.No.1149/2007 afresh, on or before 31.07.2025. 17. Registry shall transmit back the records to the trial Court forthwith. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 36