- 1 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100131 OF 2014 (DEC/PAR) BETWEEN: 1. SMT. KAREWWA W/O. GADIGEPPA AJJAPPANAVAR, AGE: 82 YEARS, OCC: NIL, R/O.: HANAMAGERI ONI, SAUNDATTI-591126, DIST: BELAGAVI. SINCE DECEASED BY HIS LR’S 2. SMT. KASHAWWA W/O. GANGAPPA SOMANNAVAR @ AJJAPPANAVAR, AGE: 52 YEARS, OCC: HOUSEHOLD, R/O: HANAMAGERI ONI, SAUNDATTI-591 126, DIST: BELAGAVI. 3. SHRI GADIGEPPA S/O. GANGAPPA SOMANNAVAR @ AJJAPPANAVAR, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: HANAMAGERI ONI, SAUNDATTI-591 126, DIST: BELAGAVI. …APPELLANTS (BY SRI SHEKHARGOUDA M.NAGANURI, ADVOCATE FOR A2 AND A3) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 AND: 1. SMT. MALLAVVA W/O. MAHADEVAPPA HUDED @ AJJAPPANAVAR, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: ASUNDI-591 126, TQ: SAUNDATTI, DIST: BELAGAVI. 2. SHRI HANAMANT S/O. BASAPPA PATTANAD, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: HANAMAGERI ONI, SAUNDATTI-591 126, DIST: BELAGAVI. 3. SHRI RAJU BASAPPA PATTANAD, AGE: 32 YEARS, OCC: AGRICULTURE, R/O: HANAMAGERI ONI, SAUNDATTI-591 126, DIST: BELAGAVI. APPELLANT NO.1 HAS DIED ON 15.08.2017 THE LR’S OF APPELLANT NO.1 ARE ALREADY ON RECORD AS APPELLANT NO.2 AND RESPONDENT NO.1 …RESPONDENTS (BY SRI SANTOSH B.MALAGOUDAR, ADVOCATE FOR R1; NOTICE TO R2 AND R3 ARE SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER XLI RULE 1 R/W SECTION 96 CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 24.01.2014 PASSED BY THE SENIOR CIVIL JUDGE, SAUNDATTI IN OS NO.22/2012 AND ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN OS NO.22/2012 ON THE FILE OF SENIOR CIVIL JUDGE, SAUNDATTI AND ETC., THIS REGULAR FIRST APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the defendants challenging the judgment and decree dated 24.01.2014, passed in O.S No.22/2012, by the Court of Senior Civil Judge, Saundatti (for short, ‘Trial Court’), thereby, the suit for partition and separate possession by metes and bounds is decreed. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 3. The plaintiff by pleading that she is the daughter of Gadigeppa, defendant No.1 is her mother and defendant No.2 is another daughter of Gadigeppa, thus constituted Hindu Undivided Family and suit properties are ancestral and joint family properties, has filed the suit for partition and separate possession. The defendants No.4 and 5 are purchasers of property. Though defendants have filed written statement, but have not contested the suit by - 4 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 cross-examining the plaintiff and also leading evidence on behalf of defendants. The Trial Court has decreed the suit, thereby it is ordered that plaintiff is entitled for partition and separate possession of 1/3rd share in all the suit schedule properties. 4. Being aggrieved by it, defendants have preferred the appeal by raising various grounds and one among the prominent ground is that defendants have not contested the suit. Though, in the written statement execution of Will and Gift Deed and prior partition in the year 1982 is taken place, therefore, there could not be an opportunity to defendants to lead their evidence. Therefore, prayed to set aside the judgment and decree passed by the Trial Court and remand the case to the Trial Court for fresh consideration in accordance with law. 5. Learned counsel for the appellants/defendants submitted that there was miscommunication between advocate and defendants. Therefore, the defendants could - 5 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 not contest the suit by cross-examining the plaintiff and also adducing evidence. 6. Further submitted that the defendants in the written statement have taken contention regarding prior partition in the year 1982 and also execution of Will and gift deed by defendant No.1 in favour of defendant No.3 and these factual aspects are to be proved by leading evidence. Otherwise, whatever the properties which were given in the share of the defendants also would go to the plaintiff which leads to injustice. Therefore, prayed to set aside the judgment and decree passed by the trial Court and remand the case to the trial Court for fresh consideration in accordance with law. 7. On the other hand, the learned counsel for the plaintiff/respondent submitted by justifying the judgment and decree passed by the trial Court that it is not a case that defendants did not know proceedings in a trial Court but the defendants have engaged an advocate and participated in the suit proceedings. But for the best - 6 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 reasons known to them, they have not cross-examined plaintiff and not led evidence. Therefore, inevitably trial Court by considering the evidence on record has decreed the suit which is justifiable and legal one. Hence, prays to dismiss the appeal. 8. Upon considering the records and submissions made by the learned counsel for the appellants, the suit is filed for partition and separate possession, the defendants have not denied constitution of Hindu undivided family between plaintiff and respondents No.1 and 2. It is the case of the defendants that in the year 1982, there was partition and plaintiff has also obtained share in the suit schedule ‘C’ properties. Whatever may be the contention of defendants in the written statement and the submissions made by the learned counsel for the appellants, but after perusal of the records, the defendants though filed written statement, have not cross-examined the plaintiff-PW-1 and have not lead any evidence both oral and documentary. - 7 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 9. The defendants have taken many contentions in the written statement and it is burden on the defendants to prove the same. When the defendants have taken some assertions in the written statement, then the trial Court ought to have framed issues to put burden on the defendants to prove those assertions, but it was not done so. Therefore, upon perusal of records, the defendants have not participated in the suit proceedings for which the trial Court could not be found fault with and inevitably decreed the suit based on the evidence on record. But at the same time, the defendants have not led evidence besides cross-examining plaintiff-PW-1. Therefore, this Court is of the opinion, to give one more opportunity to the defendants without expressing any opinion on merits involved in the case. Therefore, the judgment and decree passed by the trial Court is liable to be set aside with cost of Rs.25,000/- payable by defendants to plaintiffs enabling the defendants to participate in the suit proceedings effectively by leading evidence. Accordingly, I proceed to pass the following: - 8 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 ORDER i. The appeal is allowed with cost of Rs.25,000/- payable by defendants to the plaintiff. ii. The judgment and decree dated 24.01.2014, passed in O.S.22/2012, by the Court of Senior Civil Judge, Saundatti, is set aside. iii. The matter is remanded to the trial Court for fresh consideration, in accordance with law. iv. Both parties are given liberty to adduce evidence if they are so advised, either documentary, oral or both. v. Both parties shall appear before trial Court on 17.03.2025 without expecting notice from the trial Court. vi. The defendants shall co-operate with the trial for early disposal of the suit. vii. The trial Court is directed to dispose off the suit within a period of 9 months from 17.03.2025. - 9 - NC: 2025:KHC-D:3178 RFA No. 100131 of 2014 viii. The defendants shall co-operate with the trial Court and shall not seek any unnecessary adjournments. If the trial Court is of the opinion, the defendants are taking adjournments unnecessarily, then the defendants be levied cost according to the discretion of the court. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP para 1 to 5 RKM para 5 to end List No.: 1 Sl No.: 11