- 1 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100281 OF 2020 (PAR/POS) BETWEEN: 1. SRI. MALGODUA BUDYAPPA NAIK @ PATIL AGE: 43 YEARS, OCC: AGRICULTURE, R/O: BENCHINMARDI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. 2. SRI. LAGAMANGOUDA BUDYAPPA NAIK @ PATIL AGE: 41 YEARS, OCC: AGRICULTURE, R/O: BENCHINMARDI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. 3. SMT. GOURAVVA ASHOK BALANAVER AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: KULLUR, TQ: RAMDURG, DIST: BELAGAVI, PIN CODE: 591307. 4. SMT. SUMAVVA ASHOK NAIK AGE: 31 YEARS, OCC: HOUSEHOLD, R/O: CHIGATOLLI, POST: NALLANATTI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. 5. SMT. VIJAVVA LAXMAN NAIK AGE: 27 YEARS, OCC: HOUSEHOLD, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 R/O: HUNCHAL P.G.,TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. 6. SMT. MAHADEVI SHIVARAJ NAIK AGE: 29 YEARS, OCC: HOUSEHOLD, R/O: VADEYARHATTI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. 7. SRI.SEMANNA SALLAPPA GIGGI AGE: MAJOR, OCC: AGRICULTURE, R/O: BENCHINMARDI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. …APPELLANTS (BY SRI. MAHESH WODEYAR, ADVOCATE) AND: 1. SMT. IRAVVA SIDDAPPA NAIK (SINCE DEAD BY HIS LR’S) 1(A) SIDDAPPA AJJAPPA NAIK AGE: 65 YEARS, OCC: AGRICULTURE, 1(B) BABU SIDDAPPA NAIK AGE: 45 YEARS, OCC: AGRICULTURE, BOTH ARE R/O: TAVAG VILLAGE, TQ: GOKAK, DIST: BELAGAVI 591101. 2. SRI. SEMANNA SALLAPPA GIGGI AGE: MAJOR, OCC: AGRICULTURE, R/O: BENCHINMARDI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. - 3 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 3. SRI. LAKKAPPA SALLAPPA GIGGI AGE: MAJOR, OCC: AGRICULTURE, R/O: BENCHINMARDI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. 4. SRI. SHEKAR S/O. YALLAPPA JOGYAGOL AGE: MAJOR, OCC: AGRICULTURE, R/O: BENCHINMARDI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591307. …RESPONDENTS (BY SRI. A.B. KONI, ADVOCATE FOR C/R1(A) AND 1(B); NOTICE TO R2 AND R3 ARE SERVED; NOTICE TO R4 IS DISPENSED WITH) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.02.2020 PASSED IN O.S. NO.55/2016 ON THE FILE OF THE CIVIL JUDGE, PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA - 4 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is by the defendants assailing the preliminary judgment and decree dated 24.02.2020 drawn in O.S. No.65/2016 on the file of the Principal Senior Civil Judge, Gokak [for brevity, ‘the trial Court’] granting 1/6th share to the plaintiff. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. The family tree is as under: Lakkappa (died) Hanumantappa (died) Uddavva Gouravva Savitri 1st wife (dead) 2nd wife (dead) 3rd wife (dead) Gangavva Iravva Daughter (dead) (plaintiff) Buddeppa Son (dead) Malgouda Lagamngouda Gouravva Sumavva Mahadevi Vijavva (deft.No.1) (deft.No.2) (deft.No.3) (deft.No.4) (Deft.No.6) (Deft.5) - 5 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 4. The plaintiff who is daughter born through second wife Smt. Gouravva instituted a suit in O.S. No.55/2016 contending that she constitutes undivided joint Hindu family along with defendants and she has got legitimate share in the property. Plaintiff alleges that the propositus Sri. Lakkappa had one son by name Sri. Hanumantappa. The said Sri. Hanumantappa during his life time married Smt. Uddavva and in the said wedlock, they were blessed with one daughter by name Smt. Gangavva. Smt. Gangavva had a son by name Sri. Buddeppa. The present defendants are the legal heirs of said Sri. Buddeppa. The plaintiff further claims that Sri. Hanumantappa married one Smt. Gouravva and the plaintiff is born in the said wedlock. The present suit is filed by the plaintiff alleging that defendant Nos.1 and 2 have illegally got their names mutated to all the suit schedule properties without notifying the plaintiff and the plaintiff when questioned the defendants, the defendants contended that their father Sri. Buddeppa is adopted by propositus Sri. Hanumantappa and therefore, plaintiff has - 6 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 no right in the suit schedule properties. The present suit is filed alleging that defendant Nos.1 and 2 have denied the plaintiff’s share in the suit schedule properties and therefore, present suit for partition and separate possession came to be filed. 5. Upon receiving the summons, the defendants entered an appearance and submitted a written statement. They contested the suit, asserting that it was not maintainable as the plaintiff had previously abandoned her rights in the suit schedule properties in O.S. No. 113/2003. They further argued that the suit was barred by limitation and sought its dismissal. The Trial Court framed issues, placing the burden of proof on the defendants. To substantiate their claims, the defendants presented oral and documentary evidence, producing a total of 48 documents. However, the plaintiff did not testify. In the absence of rebuttal evidence, the Trial Court held that defendant Nos.1 to 6 failed to establish that the plaintiff had transferred her rights in the suit schedule properties - 7 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 to their father, Sri Buddeppa. While answering issue No.2 in the negative, the Court also found that the defendants could not prove the existence of a compromise recorded in O.S. No.113/2003, thereby rejecting their claim that the present suit was not maintainable. In addressing issue Nos.1 and 2, the Trial Court effectively scrutinized the validity of the alleged compromise in O.S. No.113/2003. Upon examining the original memo marked as Ex.D-45 and its certified copy marked as Ex.D-14, the Court concluded that Ex.D-14 was a fabricated document. Furthermore, it determined that the plaintiff, Iravva’s, LTM [Left Thumb Impression] was identified by the counsel who submitted the memo filed as Ex.D-14. However, referring to the order sheet at Ex.D-12 in O.S. No.113/2003, the Court noted that the LTM was not officially recorded in the order sheet. Criticizing the manner in which the Presiding Officer had dismissed the previous suit as "not pressed," the Trial Court ultimately decreed the present suit, granting the plaintiff a 1/6th share in item Nos.1 to 7 of the suit schedule properties. - 8 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 Heard the learned counsel for the defendants and the learned counsel appearing for the plaintiff. The points that would arise for consideration in this appeal are: i. Whether the finding of the trial Court that defendant Nos.1 to 6 have failed to prove the settlement arrived at between the original plaintiff – Smt. Iravva and their father Sri. Buddeppa in O.S. No.113/2003 and therefore, the present suit filed in O.S. No.55/2016 is maintainable, perverse and palpably erroneous and contrary to the mandate provided under Order XXIII Rule 3-A of the Code of Civil Procedure?- AFFIRMATIVE ii. Whether the trial Court had jurisdiction to examine the validity of the proceedings in O.S. No.113/2003 and therefore, could have recorded finding regarding genuineness of Ex.D-14, which is a memo contrary to mandate provided under XXIII Rule 3-A of the Code of Civil Procedure?- NEGATIVE 6. We have given our anxious consideration to the pleadings, oral and documentary evidence led in by the defendants. - 9 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 7. The original plaintiff – Smt. Iravva has instituted the present suit seeking relief of partition and separate possession in O.S. No.55/2016. The defendants on receipt of summons have tendered appearance and have filed written statement. A specific contention is taken by the defendants at paragraph Nos.15 to 19 indicating that original the plaintiff – Smt. Iravva has received a sum of Rs.40,000/- in cash from the defendants’ father Sri. Buddeppa and she has withdrew the same. In the light of the stand taken by the defendants, we also deem it fit to take cognizance of the disputed memo alleged to have been filed by Smt. Iravva in O.S. No.113/2003. The contents of the memo are extracted which reads as under: ªÉĪÉÆà FzÀgÀ°è ªÁ¢AiÀÄ PÉÆqÀĪÀ ªÉĪÉÆ PɼÀV£ÀAwzÉ. 1) £Á£ÀÄ F zÁªÉAiÀÄ£ÀÄß ¥Á®Ä ¨ÉÃr ¥ÀæwªÁ¢¬ÄgÀ «gÀÄzÀÞ ªÀiÁrgÀÄvÉÛãÉ. DzÀgÉ PÉÆÃnð£À ºÉÆgÀUÉ £À£ÀUÉ »jAiÀÄgÀ ¸ÀªÀÄPÀëªÀÄ £À£ÀUÉ §AUÁgÀ ªÀÄvÀÄÛ 40,000 (£Á®ªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬Ä) gÉÆR ¥ÀæwªÁ¢ PÉÆnÖgÀÄvÁÛ£É. DzÀjAzÀ zÁªÉ ªÀiÁ½PÀvÀ£À°è £À£Àß ¥Á®Ä K£ÀÄ G½¢gÀĪÀÅ¢®è. ªÀÄvÀÄÛ ¸ÀzÀj d«ÄãÀÄUÀ½UÉ ¥ÀæwªÁ¢ ¨sÀÆzÀå¥Á EvÀ£À PÀ¨ÁÓ ªÁ»ªÁnUÉà KAzÀÄ ºÀgÀPÉvÀ ªÀiÁqÀĪÀ¢¯Áè. - 10 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 CAvÁ E ¥ÀæPÁgÀ C¥À¸ÁvÀ DVzÀÄÝ £À£ÀUÉ PÉøÀ £ÀqɸÀ®Ä «ZÁgÀ EgÀĪÀÅ¢®è. DzÀ PÁgÀt £À£Àß PÉøÀ£ÀÄß QvÀÄÛ ºÁPÀ¨ÉÃPÀÄ CAvÁ «£ÀAw. 8. On closure examination of the memo alleged to have been filed by the deceased plaintiff which is marked as Ex.D-45 and the certified copy of this memo is market at Ex.D-14, we are of the view that the trial Court definitely lacked competency in commenting on the manner in which compromise was recorded in the earlier suit bearing O.S. No.113/2003. 9. The contention of the plaintiff’s counsel that the bar under Order XXIII Rule 3-A of the Code of Civil Procedure is not applicable simply because the compromise was not recorded in strict compliance with Order XXIII Rule 3 of the Code of Civil Procedure is untenable. The factual matrix of the case reveals that the earlier suit, being O.S. No.113/2003, was also a suit for partition and separate possession. The memo placed before the Court clearly stated that the original plaintiff, Smt. Iravva, had accepted a sum of Rs.40,000/- along - 11 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 with certain gold items in the presence of village elders, and the dispute was amicably settled. In light of this settlement, she withdrew the suit by filing a formal memo on 06.04.2004. A careful examination of this memo indicates that it constitutes a written instrument of compromise as contemplated under Order XXIII Rule 3 of the Code of Civil Procedure. The contents of the memo explicitly declare that the matter was settled outside the Court, which amounts to a valid compromise as recognized by law. Therefore, the plaintiff’s argument that the non- recording of the compromise under Order XXIII Rule 3 of the Code of Civil Procedure excludes the applicability of Rule 3-A cannot be accepted. 10. If a party alleges that the memo of withdrawal was obtained fraudulently and disputes the very institution of the earlier suit in O.S. No.113/2003, the appropriate legal remedy would be to approach the same Court that entertained the memo and dismissed the suit as withdrawn. When fraud is alleged in judicial proceedings, - 12 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 the Court before which such fraud is purported to have occurred is competent to examine the matter and conduct a detailed inquiry. In the present case, if the original plaintiff, Smt. Iravva, contends that she never instituted the earlier suit and that the memo of withdrawal was fraudulently produced before the Court, she ought to have challenged the same by filing an appropriate application before the Court which allowed the withdrawal of O.S. No.113/2003. The fact that she did not avail herself of this remedy further strengthens the presumption that the compromise was genuine. Consequently, the institution of a fresh suit without challenging the earlier proceedings is not maintainable in law. 11. The trial Court, however, failed to consider the bar imposed by Order XXIII Rule 3-A of the Code of Civil Procedure and instead proceeded with a full-fledged trial. This approach was legally flawed. The burden of proof in the trial was entirely placed on the defendants, despite the serious allegations made by the plaintiff. The defendants, - 13 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 in response, presented substantial evidence, including the original proceedings of O.S. No.113/2003 and the memo allegedly signed by Smt. Iravva, which was marked as Ex.D-45. Upon careful scrutiny of these documents, it becomes evident that the defendants successfully discharged their burden of proving that the plaintiff had relinquished her claim by accepting Rs.40,000/- and gold in the previous suit. The trial Court, instead of acknowledging this crucial aspect, erroneously proceeded with the case without considering the legal bar under Order XXIII Rule 3-A of the Code of Civil Procedure. 12. Another significant aspect that cannot be ignored is the conduct of the plaintiff in the present suit. Despite making serious allegations of fraud and impersonation, the plaintiff chose not to step into the witness box to substantiate her claims. It is a well-settled principle of law, consistently upheld by the Hon’ble Supreme Court and various High Courts, that when a party who has the burden of proof refuses to testify, an adverse - 14 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 inference must be drawn against them as per the provisions of the Indian Evidence Act. The plaintiff’s reluctance to adduce any evidence or offer herself for cross-examination raises serious doubts about the veracity of her claims. The Court records, which carry presumptive value, demonstrate that the earlier suit was indeed instituted, and the settlement was voluntarily recorded in the memo. The plaintiff’s failure to challenge the earlier proceedings before the appropriate forum and her deliberate abstention from testifying in the present suit reinforces the conclusion that her claims are baseless. 13. A critical flaw in the trial Court’s approach was the plaintiff’s failure to step into the witness box to substantiate her allegations. Despite making serious claims of fraud and impersonation, the plaintiff never subjected herself to cross-examination, thereby denying the defendants a fair opportunity to test the veracity of her claims regarding the memo executed in the earlier suit. As per Section 114(g) of the Indian Evidence Act, an - 15 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 adverse inference should have been drawn against the plaintiff for her deliberate avoidance of cross-examination. The principle laid down by the Hon’ble Supreme Court and various High Courts establishes that when a party refuses to testify on a material issue, the presumption is that the claim lacks credibility. The trial Court’s failure to draw such an inference significantly weakened the legitimacy of its findings and contributed to an erroneous verdict. 14. In light of the statutory bar under Order XXIII Rule 3-A of the Code of Civil Procedure, the judgment and decree passed by the trial Court in the present suit are palpably erroneous and legally unsustainable. Once a suit is withdrawn upon acknowledgment that the dispute has been settled out of Court and a written memo confirms the receipt of Rs.40,000/- and gold in the presence of village elders, a fresh suit challenging the settlement cannot be entertained without specific pleadings and proof of fraud. The plaintiff bore the burden of proving that the suit was filed through misrepresentation and impersonation, which - 16 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 she failed to do. Such serious allegations, affecting both the plaintiff and the Court, should have been adjudicated before the very Court that allowed the withdrawal of O.S. No.113/2003. The trial Court erred in placing the entire burden of proof on the defendants while allowing the plaintiff to evade cross-examination. The failure of the trial Court to draw an adverse inference against the plaintiff and its oversight in addressing the legal bar under Order XXIII Rule 3-A of the Code of Civil Procedure render its findings unsustainable. Consequently, the judgment and decree of the trial Court are liable to be set aside. However, the decision in the case of Krishan Mohan Singh v. Sri Chand Gupta & Others1, relied upon by the learned counsel for the defendants, does not have direct applicability to the present case. Accordingly, point No.1 is answered in the affirmative, and point No.2 is answered in the negative. 1 AIR 1993 Delhi 365 - 17 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 CONCLUSIONS 15. The trial Court erred in ignoring the statutory bar under Order XXIII Rule 3-A of the Code of Civil Procedure. The compromise recorded in the memo, despite not being formally recorded under Order XXIII Rule 3, constitutes a valid settlement. Consequently, a fresh suit challenging the compromise was legally untenable. The failure to recognize this legal bar rendered the trial Court’s approach fundamentally flawed. 16. The plaintiff’s primary contention of fraud in the earlier suit [O.S. No.113/2003] should have been raised before the same Court that permitted the withdrawal of the suit. The correct legal remedy was to challenge the alleged fraud before that Court rather than instituting a fresh suit. The plaintiff’s failure to avail this remedy reinforces the presumption that the compromise was genuine and voluntarily entered into. - 18 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 17. The trial Court had no jurisdiction to scrutinize the alleged fraud in the earlier suit, which was withdrawn upon a written memo confirming settlement through payment in cash and gold. Order XXIII Rule 3-A of the Civil Procedure Code explicitly bars the institution of a separate suit challenging the validity of a compromise decree on grounds of fraud, coercion, or misrepresentation. Instead, such allegations must be raised before the Court that recorded the settlement. By entertaining the fresh suit and revisiting issues already concluded through a duly recorded compromise, the trial Court acted beyond its jurisdiction. This not only contravened statutory provisions but also undermined the finality and sanctity of judicial proceedings. Its failure to recognize this jurisdictional limitation further invalidates its findings and necessitates reversal. 18. The trial Court incorrectly shifted the burden of proof onto the defendants instead of requiring the plaintiff to substantiate her allegations. The defendants provided - 19 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 substantial evidence, including the original suit proceedings and the memo signed by Smt. Iravva [marked as Ex.D-45], which confirmed the settlement. This evidence established that the plaintiff had relinquished her claims by accepting Rs.40,000/- and gold items. The trial Court's failure to acknowledge this vital evidence further contributed to the erroneous findings. 19. The plaintiff, despite making serious allegations of fraud and impersonation, chose not to testify or subject herself to cross-examination. As per well-settled legal principles under the Indian Evidence Act, an adverse inference should have been drawn against her for failing to substantiate her claims. The trial Court overlooked this crucial aspect, leading to an erroneous evaluation of the case. 20. The Court records demonstrated that the earlier suit was instituted and withdrawn through a written memo confirming settlement. In the absence of specific pleadings and evidence proving fraud, the presumption in favor of - 20 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 the genuineness of Court proceedings should have prevailed. The trial Court’s failure to give due weight to these records further undermined the correctness of its judgment. 21. The trial Court's reliance on extraneous factors, while ignoring the legal bar under Order XXIII Rule 3-A of the Code of Civil Procedure, led to an incorrect ruling. Furthermore, while the defendants cited Krishan Mohan Singh v. Sri Chand Gupta & Others, this decision did not have direct applicability to the present case. The trial Court failed to conduct a proper legal analysis, further justifying the need for reversal. 22. The trial Court’s judgment and decree are legally unsustainable and must be set aside. The fresh suit instituted by the plaintiff was barred by Order XXIII Rule 3-A of the Code of Civil Procedure, and the allegations of fraud should have been raised before the Court that entertained the original suit. The trial Court’s failure to draw adverse inferences against the plaintiff, misplaced - 21 - NC: 2025:KHC-D:4558-DB RFA No. 100281 of 2020 burden of proof, and disregard for statutory provisions warrant the reversal of its findings. 23. For the foregoing reasons, we pass the following: ORDER [a] The appeal is allowed. [b] The suit filed by the plaintiff in O.S. No.55/2016 is hereby dismissed. However, the dismissal will not come in the way of the legal heirs of the plaintiff – Iravva to pursue the remedy in the manner known to law. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE RSH / CT-CMU LIST NO.: 1 SL NO.: 19