- 1 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 23RD 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. 100006 OF 2022 (PAR/POS-) BETWEEN: SHIDDAPPA S/O. BASAPPA MUGALI, AGE: 73 YEARS, OCC: AGRICULTURE, REPRESENTED THROUGH HIS GPA HOLDER, BASAVARAJ S/O. SIDDAPPA MUGALI, AGE: 32 YEARS, OCC: AGRICULTURE, R/O. JANATA PLOT, GHODAGERI-591107, TQ: HUKKERI, DIST: BELAGAVI. …APPELLANT (BY SRI. C.S. SHETTAR, ADVOCATE) AND: 1. SHIDRAM S/O. NIRWANEPPA MUGALI, AGE: 57 YEARS, OCC: AGRICULTURE, R/O. RAITAR ONI, GHODAGERI-591107, TQ: HUKKERI, DIST: BELAGAVI. 2. RAVINDRA S/O. NIRWANEPPA MUGALI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. RAITAR ONI, GHODAGERI-591107, TQ: HUKKERI, DIST: BELAGAVI. 3. BALAGOUDA S/O. NIRWANEPPA MUGALI, AGE: 46 YEARS, OCC: AGRICULTURE, NOW R/O. RAITAR ONI, GHODAGERI-591107, TQ: HUKKERI, DIST: BELAGAVI. …RESPONDENTS (BY SRI. S.M. TONNE, ADVOCATE FOR R1 & R2; NOTICE TO R3-HELD SUFFICIENT) YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SETTING ASIDE THE JUDGMENT AND DECREE IN O.S.NO.24/2018 DATED 07.04.2021 PASSED BY SENIOR CIVIL JUDGE, HUKKERI AND THEREBY DECREE THE SUIT AND ETC. THIS APPEAL COMING ON FOR 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 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present appeal is filed by the plaintiff calling in question the judgment and decree dated 07.04.2021 passed in O.S.No.24/2018 by the Senior Civil Judge, Hukkeri1 whereunder the suit for partition and separate possession filed by the plaintiff has been dismissed by the Trial Court. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiff that the propositus- Basappa has got two sons by name Shiddappa (plaintiff) and Nirwaneppa, whose children are arrayed as defendant Nos.1 to 3. It is the case of the plaintiff that the suit schedule properties 1 Hereinafter referred to as “the Trial Court” - 3 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 are the joint family properties and the same not having been partitioned amongst the legal heirs of the propositus, the plaintiff has filed the suit for partition and separate possession. 3.1 The defendant Nos.1 and 2 have entered appearance through their counsel and contested the suit by filing written statement. The suit against defendant No.3 has been dismissed for non-prosecution. 3.2 The defendant Nos.1 and 2, in their written statement, have denied the case put forth by the plaintiff including the description of the suit schedule properties as also that the said properties are the joint family properties of the family of the propositus. It is the specific case of the defendants that the joint family properties of the propositus were partitioned and the father of the defendants was allotted his share in the properties, which have been developed by the defendants. Further, various contentions have been taken by the defendants wherein they have disputed and denied the case put forth by the plaintiff and have sought for dismissal of the suit. - 4 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 4. Consequent to the pleadings of the parties, the Trial Court framed nine issues. The Trial Court considering the oral and documentary evidence on record has dismissed the suit filed by the plaintiff, inter alia, holding that the properties of the propositus have been partitioned and also by recording a finding that the plaintiff has not included all the family properties and not impleaded all the necessary parties. Being aggrieved, the plaintiff has preferred this appeal. 5. Heard the submissions of learned counsel for the appellant/plaintiff and learned counsel for the respondent Nos.1 and 2/defendant Nos.1 and 2. Notice to respondent No.3/defendant No.3 has been held sufficient. 6. Learned counsel for the appellant/plaintiff assailing the judgment and decree passed by the Trial Court contends that the finding recorded by the Trial Court is contrary to the material on record. It is further contended that at the stage of cross- examination of DW1, the learned counsel appearing for the plaintiff before the Trial Court retired from the case and thereafter, the cross-examination of DW1 on behalf of the plaintiff could not be completed as also arguments on merits of - 5 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 the matter on behalf of the plaintiff was not advanced. Hence, the learned counsel for the appellant/plaintiff seeks for remand of the matter as also to provide another opportunity to include the other properties and implead necessary parties. 7. Per contra, learned counsel for the respondent Nos.1 and 2 justifying the judgment and decree passed by the Trial Court submits that the plaintiff in his cross-examination had admitted various aspects as to the case put forth by the defendant Nos.1 and 2, which has been rightly appreciated by the Trial Court. It is further submitted that having regard to the material on record, the Trial Court was justified in dismissing the suit of the plaintiff. With regard to submission made by the learned counsel for the appellant/plaintiff seeking for an opportunity to include other properties and parties, it is submitted by the learned counsel for the respondent Nos.1 and 2 that the other properties have already been alienated by the appellant/plaintiff, which has been admitted by him in his cross- examination. 8. The submissions of both the learned counsel for the parties have been considered and the material on record - 6 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 including the records of the Trial Court have been perused. The question that arises for consideration in the present appeal is: Whether the impugned judgment and decree passed by the Trial Court is erroneous and liable to be interfered with? 9. Although various contentions have been put forth on the merits of the matter, it is clear from the order sheet of the Trial Court that DW1 was examined in chief and Ex.D2 to Ex.D7 were marked in his evidence and the matter was adjourned to 17.03.2021 for further examination-in-chief of DW1. On the said date i.e., on 17.03.2021, Ex.D8 to Ex.D11 were marked in evidence. On the said date, the learned counsel for the plaintiff retired from the case. On the said date itself, the cross- examination of DW1 was taken as nil, the arguments were heard and the matter was posted for judgment. 10. It is clear that the date when the examination-in- chief of DW1 was concluded is the date when the learned counsel appearing for the plaintiff before the Trial Court retired from the case. On the said date itself, the evidence of the defendants was - 7 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 concluded as well as the arguments were heard and the matter was posted for judgment. 11. Having regard to the aforementioned factual matrix, it is clear that the plaintiff ought to be afforded another opportunity to cross-examine DW1 and put forth his contentions on merits of the matter subject to certain conditions. 12. In addition to the above, the learned counsel for the appellants have sought for opportunity to include other properties as well as parties, which has been opposed to by the learned counsel for the respondent Nos.1 and 2. We make it clear with regard to the said aspect of the matter, that it shall be open to the appellant-plaintiff to file suitable interlocutory application/s before the Trial Court and if such application/s is made, it shall be open to the respondent Nos.1 and 2/defendant Nos.1 and 2 to file objections to the application/s and contest the same on its merits. 13. Accordingly, the question framed for consideration is answered in the ‘affirmative’. Hence, the following: - 8 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 ORDER (i) The above appeal is allowed with cost of ₹10,000/-; (ii) The judgment and decree dated 07.04.2021 passed in O.S.No.24/2018 by the Senior Civil Judge, Hukkeri is hereby set aside; (iii) The parties shall appear before the Trial Court on 29.10.2025 without requirement of any further notice being issued in this regard; (iv) The appellant/plaintiff shall pay the cost of ₹10,000/- to the defendant Nos.1 and 2 on the date fixed for appearance before the Trial Court. In the event, the defendant Nos.1 and 2 refuse to receive the said cost, the plaintiff shall be at liberty to deposit the same before the Trial Court; - 9 - HC-KAR NC: 2025:KHC-D:12985-DB RFA No. 100006 of 2022 (v) The appellant-plaintiff shall cross-examine DW1 on the date fixed by the Trial Court for the said purpose; (vi) Liberty is reserved to the parties to file appropriate interlocutory application/s and if such interlocutory application/s are filed, the Trial Court shall consider the same in accordance with law and the contentions of both the parties with regard to the same are kept open; (vii) Registry to transmit the Trial Court Records forthwith. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE YAN CT-MCK List No.: 1 Sl No.: 26