- 1 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100125 OF 2021 (PAR/DEC) BETWEEN: SUBHAS VENKAPPA RANJANAGI AGE: 49 YEARS, OCC: AGRICULTURE, R/O: HALEYARAGUDRI, TQ: GOKAK. DIST: BELAGAVI-591307, …APPELLANT (BY SRI. ARUN L. NEELOPANT, ADVOCATE) AND: 1. HARISH @ RANGAPPA S/O. SURESH RANJANAGI AGE: 13 YEARS, OCC: STUDENT, R/O: HALEYARAGUDRI, TQ: GOKAK. NOW AT AMALAGERI, TQ: BILAGI, DIST: BAGALKOTE-587121. 2. SPOORI D/O. SURESH RANJANAGI AGE: 12 YEARS, OCC: STUDENT, R/O: HALEYARAGUDRI, TQ: GOKAK. NOW AT AMALAGERI, TQ: BILAGI, DIST: BAGALKOTE-587121. SINCE THE RESPONDENT NO. 1 AND 2 ARE MINORS REPRESENTED BY RESPONDENT NO.3 3. ROOPA W/O. SURESH RANJANGI AGE: 33 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: HALEYARAGUDRI, TQ: GOKAK. NOW AT AMALAGERI, TQ: BILAGI, DIST: BAGALKOTE. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.03.01 12:09:11 +0530 - 2 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 4. SURESH SATTEPPA RANJANGI AGE: 39 YEARS, OCC: AGRICULTURE, R/O: HALEYARAGUDRI, TQ: GOKAK, DIST: BELAGAVI-591307. 5. SMT. RENUKA GOVINDAPPA SHIROL AGE: 42 YEARS, OCC: AGRICULTURE, R/O: LINGANUR, TQ: JAMKHANODI, DIST: BAGALKOT-587301. 6. PREMA SHIDDAPPA HONNAPPAGOL AGE: 40 YEARS, OCC: AGRICULTURE, R/O: DEVANAAL, TQ: AND DIST: BAGALKOTE-587204. 7. SHIDDAPPA SHIVANGOUDA HONNAPPAGOL AGE: 46 YEARS, OCC: AGRICULTURE, R/O: DEVANAAL, TQ: AND DIST: BAGALKOTE-587204. 8. MANJUNATH SHIVANAGOUDA HONNAPPAGOL AGE: 42 YEARS, OCC: AGRICULTURE, R/O: DEVANAAL, TQ: AND DIST: BAGALKOTE-587204. 9. SMT. GANGAWWA W/O. VENKAPPA HOSAMANI AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR SRI HANUMAN TEMPLE, HOSAYARAGUDRI, TQ: GOKAK, DIST: BELAGAVI-591307. 10. TIMMANNA S/O. VENKAPPA HOSAMANI AGE: 38 YEARS, OCC: AGRICULTURE, R/O: NEAR SRI HANUMAN TEMPLE, HOSAYARAGUDRI, TQ: GOKAK, DIST: BELAGAVI-591307. 11. KRISHNAPPA S/O. APPANNA RANJANGI AGE: 38 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 R/O: NEAR LAXMI TEMPLE, HALEYARAGUDRI, TQ: GOKAK, DIST: BELAGAVI-591307. 12. YALLAPPA RANGAPPA RANJANAGI AGE: 64 YEARS, OCC: AGRICULTURE, R/O: NEAR BUS STAND, HALEYARAGUDRI, TQ: MUDALAGI DIST: BELAGAVI-591312. 13. RAMAPPA RANGAPPA RANJANAGI AGE: 69 YEARS, OCC: AGRICULTURE, R/O: NEAR BUS STAND, HALEYARAGUDRI, TQ: MUDALAGI, DIST: BELAGAVI-591312. 14. KRISHNAPPA HANAMANT RANJANAGI AGE: 59 YEARS, OCC: AGRICULTURE, R/O: LINGNUR, TQ: JAMKHANDI, DIST: BAGALKOT-587301. …RESPONDENTS (BY SRI. C.S. SHETTAR, ADVOCATE FOR R3; R1 AND R2 MINORS REPRESENTED BY R3; SRI. VINAY S. KOUJALAGI, ADVOCATE FOR R4 TO R7; SRI. DINESH M. KULKARNI, ADVOCATE FOR R9 AND R10; NOTICE TO R8, R13 AND R14 ARE SERVED; R11 AND R12 HELD SUFFICIENT V/O. DATED 29.09.2023) THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DTED 06.01.2020 PASSED IN O.S.NO.373/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GOKAK, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND DECLARATION. THIS APPEAL, COMING ON FOR FINAL HEARING, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 4 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) Defendant No.8 has preferred this appeal against the judgment and decree dated 06.01.2020 passed by the II Addl. Senior Civil Judge and JMFC., Gokak in OS No.373/2016. 2. Plaintiffs (respondents No.1 to 3 herein) have filed a suit for partition and declaration. Defendants No.3 to 6 and 7(a & b) have contested the matter. After hearing the matter, the trial court decreed the suit by the impugned judgment. Same is challenged in the present appeal, by the defendant No.8. 3. We refer to the parties as per their ranking before the trial court. 4. It is the case of the plaintiff that the defendant No.1 is the husband of plaintiff No.3 and father of plaintiffs No.1 and 2. From the marriage of defendant No.1 and plaintiff No.3, plaintiffs No.1 and 2 were born. Defendant No.2 was father of defendant No.1. In the partition of the year 1988 between defendant No.2, his brother and defendant No.1, suit properties were allotted to the share of defendant No.1 and his name was mutated in the records. Suit properties are the joint family - 5 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 properties and are in joint possession and enjoyment of the plaintiffs and defendant No.1. 5. It is further contention of the plaintiffs that defendant No.1 was ill treating and harassing the plaintiffs. He was been obstructing plaintiffs peaceful possession and enjoyment of the joint family properties. He is addicted to bad vices and acting against the interest of the joint family. He is torturing plaintiff No.3 and in her name used to raise loans to meet his bad vices. He was also trying to sell the suit properties. Hence plaintiffs demanded for partition and separate possession of their shares in the suit properties. Defendant No.1 did not agree to effect partition. Therefore plaintiffs were constrained to file the suit. 6. Plaintiffs have amended the plaint and included item Nos.2 to 7 of joint family properties in the suit for partition. It is further contended that defendant No.1 and his father Satyappa alienated property bearing Sy.No.112/1 vide sale deed dated 08.01.2000 in favour of one Venkappa Hosamani. However, the said Venkappa never came in possession of the said property. The said sale deed executed by - 6 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 the defendant No.1 without knowledge and consent of plaintiffs is not binding on the rights of the plaintiffs. 7. It is further contended by the plaintiffs that defendant No.1 also sold property bearing R.S.No.97/6. He had no right to transfer the said property. It is also contended that another suit was filed in respect of suit property in OS No.260/2006, wherein the plaintiffs were not made as parties. Therefore, mutation effected by virtue of decree passed in the said suit is not binding on the rights of the plaintiffs. Plaintiffs also included R.S.No.14/6B and 14/4 to claim share in the said properties. With these reasons, they prayed for partition and separate possession of their 1/4th share in the said properties by metes and bounds and to declare that the sale deed executed by the defendant No.1 in respect of R.S.No.112/1 dated 08.11.2000 is not binding on the rights of the plaintiffs. 8. The defendants No.3 to 6 have filed a common written statement. Their contentions are that defendant No.2’s wife had a snake bite during the year 2005 and, to treat her, he required money. Defendants No.5 and 6 gave Rs.3,00,000/- which he had spent for her treatment. Therefore, defendant - 7 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 No.2 relinquished his right in respect of suit item No.7 property in favour of he defendant Nos.5 and 6 with the consent of defendant Nos.1, 3 and 4. Accordingly, their names were mutated in the revenue records. Defendant Nos.3 and 4 are the sisters of defendant No.1 and each are entitled for 1/3rd share in the suit schedule properties. Sale deed executed in favour of defendant Nos.5 and 6 is binding on the rights of the plaintiffs. 9. It is further contended that defendant No.1 has sold suit item Nos.5 and 6 properties not for the benefit of the family. The sale deed executed in favour of the defendant Nos.5 and 6 in respect of item Nos.5 and 6 are not binding on the rights of the defendant Nos.3 and 4. He also admitted that defendant No.1 was harassing and ill treating plaintiffs. Therefore, plaintiffs are residing separately. It is also contended that defendant No.8 is not a member of the family. Decree obtained by him is not in accordance with law. With these reasons, prayed to allot 2/3rd share to the defendant Nos.3 and 4 in the suit schedule properties. - 8 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 10. Defendant No.7 denied the genealogy. It is also stated that item No.4 of suit schedule i.e. Sy.No.112/1 is not ancestral and joint family property. He also disputed the relationship between the plaintiffs and defendant No.1 and challenged their locus standi to file the suit. It is further contention that property was sold prior to birth of plaintiff Nos.1 and 2. He further contends that defendant Nos.1 and 2 sold the item No.4 of the said property in his favour. With these reasons prays to dismiss the suit with costs. 11. Defendant No.8(appellant) though appeared before the trial Court, he did not file written statement, cross examined the PW1 and led his evidence. He did not prosecute the case before the trial Court. 12. The trial court framed the necessary issues on the basis of the pleadings of the parties. The issues and additional issues are as under: Issues 1. Whether the plaintiffs prove that the suit properties are the joint family properties? - 9 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 2. Whether the plaintiffs prove that the sale deed dated 8.11.2000 is not binding on their share? 3. Whether the defendant No.7 is entitled for cost of Rs.50,000/-? 4. Whether the plaintiffs are entitled to 3/4th share in the suit properties? 5. What order or decree? Additional Issues 1. Whether the defendants No.3 to 6 prove that the defendants No.3 and 4 have relinquished Sl.No.7 of the suit property in favour of defendants No.5 and 6? 2. Whether the defendants No.3 to 6 prove that the suit is under valued and court fee paid is insufficient? 3. Whether the defendants No.3 and 4 are entitled to 2/3rd share in the suit properties? 13. Plaintiffs to prove their case examined PW.1 to 3 and got marked 25 documents as per Ex.P1 to P.25 and closed their evidence. Defendants No.4, 5 and 7(a) examined themselves as DW.1 to 3 and they have got marked documents at Ex.D1 to D11. Defendants No.3 to 6 examined one witness as DW.4. - 10 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 14. The trial Court heard the arguments of both side parties. Appreciating the pleadings and evidence on record, the trial court answered issue No.1 and 4 partly in the affirmative and issue Nos.2, 3 and additional issue No.1 in negative. Additional issue No.2 and 3 in the affirmative and ultimately decreed the suit in part by declaring that the plaintiffs No.1 and 2 together entitled for 2/9th share and defendant No.1 is entitled for 1/9th share, defendants No.3 and 4 together entitled for 6/9th share in the suit item Nos.1 to 3 and 5 to 7 properties. The trial court also gave liberty to the defendants No.1, 3 and 4 to apply for drawing a decree in their favour by payment of requisite court fee. Said decree and judgment is challenged in the present appeal. 15. We have heard the arguments of learned counsel for the parties. 16. The learned counsel for the appellant submits that appellant was an illiterate and he had lot of belief on his advocate who appeared before the trial Court. The learned counsel appearing for the appellant before the trial court assured him that whenever his presence would require, he - 11 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 would inform him. He was waiting for the call from his advocate. After long gap he contacted his advocate to ascertain the status of his case and at that time, he came to know about the judgment passed by the trial Court on 06.01.2020. In view of the said reasons he could not appear before the trial Court and prosecute the matter. Therefore, learned counsel for the appellant submits that the trial court did not give him sufficient opportunity to file his written statement and lead his evidence. Hence serious injustice caused to him. With these reasons he prayed to allow the appeal. 17. The learned counsel for the respondents submits that the appellant after filing the vakalath before the trial court did not prosecute the case. He did not file the written statement in order to lead his evidence or cross examine the witnesses examined on both the sides. The matter was pending before the trial court from the year 2016 to 2020 i.e., around four years. After engaging an advocate and appearing before the trial court, he has completely forgotten the case. It appears that he was watching behind the bush to know the proceedings and as soon as the trial Court passed the judgment, suddenly he preferred this appeal. It is very clear that he prefers this - 12 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 appeal with an intention to harass the parties to the proceedings. Appellant has prayed for setting aside the impugned judgment and dismiss OS No.373/2016. The trial court on considering the pleadings and evidence on record decreed the suit in part. Therefore, there are no reasons to interfere in the said findings. Therefore, prays to dismiss the appeal with costs. 18. The points that arise for our determination of this court are : 1) Whether the appellant had just and sufficient opportunity to prosecute the case? 2) Whether findings of learned trial judge is perverse, arbitrary and illegal and interference is required? 19. Point No.1: Our answer for point Nos.1 and 2 in the negative for the following reasons: Plaintiffs have filed the suit for partition and declaration on 26.10.2016. Order sheet reveals that summons was served through RPAD to appellant/defendant No.8. Thereafter, defendant No.8 engaged an advocate and appeared on 06.06.2017 and prayed time to file written statement. The trial court has given sufficient opportunities to defendant No.8 to file written statement. The trial court noting continuous absence of - 13 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 defendant No.8 and his counsel on 04.09.2017, took their written statement as nil. The trial court framed the issues and recorded the evidence. At all the stages of the case, the trial court noted the absence of defendant No.8 and his counsel and even time was granted before proceeding further. Despite that, defendant No.8 did not appear and prosecute the case effectively. 20. Appellant contends that no proper opportunity of hearing was given to defendant No.8 to file written statement and prosecute the case effectively. On perusal of the trial Court order sheet, the said contention is not tenable. As rightly submitted by the learned counsel for the respondents, the matter was pending before the trial court for about four years and on none of the dates he appeared and sought permission to file written statement or cross examine the plaintiffs’ witness or defence witnesses or led his evidence. Therefore, the said contention of the appellant in the appeal memo as well as in the arguments his nothing but far from truth. 21. Appellant also tried to allege against his advocate that his advocate told him that whenever his presence is - 14 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 required, he would call him and believing the words of his advocate, he did not contact him. The said ground is also not supported by any materials. In the trial court at each stage presence of parties is required. Looking to his contention, it appears that for over a period of 4 years he never contacted his advocate. Any prudent man can infer that it was sear negligence of appellant in not contacting his advocate. It appears that just to get a favourble order he is blaming his advocate such contention cannot be accepted. It is his duty to contact his advocate to give instructions and know the dates of hearing and appear before the court and pursue the advocate to prosecute his case effectively. He cannot shift his responsibility on the advocate. The litigation was pending between parties to the proceedings and not between advocates. Advocates are engaged to help the parties to represent them since parties may not know procedures of law and may not understand the court proceedings. In this case, appellant just to shark his responsibility gave vakalath to his counsel and slept over his responsibility to prosecute the case. Therefore, it appears that to gain sympathy of the court, the said contention - 15 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 might have been taken by the appellant and on that ground the impugned judgment cannot be set aside. 22. Appellant contends that himself and defendant No.1 are successors of common male ancestors and suit properties were partitioned between him and defendant No.1 by virtue of compromise decree dated 19.10.2006 passed in OS No.260/2006 on the file of learned Senior Civil Judge, Gokak. The said compromise is referred in the mutation extract. According to the compromise, R.S.No.97/6/1 measuring 35 guntas and R.S.No.97/5 measuring 2 acres 36 guntas was fallen to the share of appellant-defendant No.8 and the said properties are not the subject matter in the present suit. The said documents were not placed on record and no such contentions were even taken by defendant No.1 before the trial Court. 23. The learned counsel for the appellant tried to rely on the mutation entries regarding partition of the property. In Exs.P.20 and P21, there is a just reference about decree passed in OS No.260/2006. Copy of the said decree is not placed on - 16 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 record. On the basis of such reference court can not presume any facts without records. 24. The learned counsel for the appellant vehemently contend that right over an immovable property is involved in the present suit. If an opportunity is given to the appellant to file written statement and cross examine the witness examined before the trial Court, no prejudice or hardship would be caused to other side. Even if the prejudice is caused, the same can be compensated in terms of money. On the contrary, if the appeal is dismissed on technical ground, then he would be put to irreparable loss and injury that cannot be compensated in terms of money. The said contention is not tenable. Plaintiffs before the trial court fought the litigation for about 4 years and were able to get decree in part. This appeal is pending for about last four years plaintiffs are unable to enjoy the fruits of the decree. Looking to the records the conduct of appellant- defendant No.8 shows that he was totally negligent in conducting litigation. After completing entire process of pleading, recording of evidence and passing of judgment, he files this appeal to set aside the judgment. Reasons assigned in the appeal memo are not sufficient to set aside the judgment, - 17 - NC: 2025:KHC-D:2276-DB RFA No. 100125 of 2021 just to accommodate a negligent litigant, who did not bother about his case when it was pending before trial court for about 4 years. He appears to be watching behind the bush and after passing of the decree by the trial court, suddenly he woke up and filed this appeal. His conduct shows that he is not a bonafide litigant. The grounds of appeal are not sufficient to set aside the judgment of trial court. For above said reasons, we answer above questions in the negative and proceed to pass following. ORDER Regular First Appeal No.100125/2021 is dismissed. IA No.1/2020 does not survive for consideration since main appeal itself is dismissed. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE HMB Ct-cmu LIST NO.: 1 SL NO.: 21