- 1 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 812 OF 2013 (PAR-) BETWEEN: 1. NINGAPPA S/O. BASETEPPA SURANAGI, AGED ABOUT 70 YEARS, R/O. HOSALLI, SAVANUR TALUK, HAVERI DISTRICT-581110. 2. BASETEPPA S/O. NINGAPPA SURANAGI, AGED ABOUT 33 YEARS, R/O. HOSALLI, SAVANUR TALUK, HAVERI DISTRICT-581110. 3. FAKIRAPPA S/O. NINGAPPA SURANAGI, AGED ABOUT 29 YEARS, R/O. HOSALLI, SAVANUR TALUK, HAVERI DISTRICT-581110. …APPELLANTS (BY SRI. PRASHANT V. MOGALI, ADVOCATE) AND: KAMALADEVI, W/O. PARAPPA SURANAGI, AGED ABOUT 53 YEARS, OCCU: GOVERNMENT SERVICE, C/O. YELLAPPA GOUDAR PATIL, R/O. GUDIGERI, KUNDAGOL TALUK, DHARWAD DISTRICT-581110. …RESPONDENT (BY SRI. SOURAB A. SONDUR FOR SRI. K.L. PATIL & SRI. S.S. BETURMATH, ADVOCATES) Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.18 10:57:31 +0530 - 2 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE DISTRICT JUDGE, HAVERI, IN R.A.NO.28/2009 DATED 17.04.2010 MODIFYING THE JUDGMENT AND DECREE PASSED BY CIVIL JUDGE (SR.DN) & CHIEF JUDICIAL MAGISTRATE AT HAVERI, IN O.S. NO.6/2008 DATED 25.02.2009 IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendants assailing the Judgment and Decree dated 17.04.2010 in R.A.No.28/2009 on the file of District Judge at Haveri, allowing the appeal and confirming the Judgment and Decree in O.S.No.6/2008 dated 25.02.2009 on the file of Civil Judge (Sr.Dn.) and CJM, Haveri, decreeing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as per their rank before the Trial Court. - 3 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 3. It is the case of the plaintiff that the original propositus Basetteppa Suranagi had three children namely Ningappa (defendant No.1), Parappa (husband of plaintiff) and Channabasappa (died issueless). 4. It is stated in the plaint that the suit schedule property is the joint family property of husband of the plaintiff – Parappa and defendant No.1 along with their father – Basetteppa Suranagi and therefore the plaintiff has filed O.S.No.6/2008 seeking relief of partition and separate possession in respect of the suit schedule property. 5. After issuance of notice, the respondent having refused to accept the notice, was accordingly, placed ex-party. In order to establish her case, plaintiff has examined herself as P.W.1 and one more witness as P.W.2 and produced 86 documents and same were marked as Exs.P1 to P86. The Trial Court, after considering the material on record, by its Judgment and Decree dated 25.02.2009, decreed the suit in part holding that the plaintiff is entitled for half share in the suit schedule property. Feeling aggrieved by the same, the plaintiff herself has filed appeal in R.A.No.28/2009, on the file of First Appellate Court - 4 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 and the respondents therein despite notice, did not turn up. The First Appellate Court, after considering the material on record, by its Judgment and Decree dated 17.04.2010, disposed of the appeal. Feeling aggrieved by the same, the defendants have preferred this appeal. 6. This Court, vide order dated 06.01.2022, formulated the substantial questions of law as below: “ Whether the First Appellate Court was justified in granting share to the plaintiff, when admittedly the husband of the respondent/plaintiff namely Parappa sold his share in favour of his brother i.e. appellant No.1 under registered sale deed dated 22.05.1989? ” 7. I have heard Sri. Prashanth V. Mogali, learned counsel for the appellants/defendants and Sri. Sourab A. Sondur, learned counsel for the respondent/plaintiff. 8. Sri. Prashanth V. Mogali, learned counsel for the appellants contended that the impugned Judgment and Decree passed by both the Courts below wherein the appellants herein have been placed ex-parte and no opportunity has been - 5 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 extended to the defendants on record to contest the matter. It is also contended by the learned counsel for the appellant that there was a partition in the family of late Basetteppa Suranagi i.e. plaintiff and defendants and thereafter the husband of the plaintiff – Parappa had executed registered sale deed in favour of the defendants in so far as the portion of the land which was allotted to his favour and accordingly sought for interference by this Court. 9. Per contra, learned counsel Sri. Sourab A. Sondur, appearing for the respondent/plaintiff sought to justify the impugned Judgment and Decree passed by the Court below and contended that as the plaintiff is the wife of Parappa and the suit schedule property is the joint family property of the father- in-law of the plaintiff – Basetteppa Suranagi and defendants, and therefore, submitted that the plaintiff is entitled for half share in the joint family property and accordingly sought for dismissal of the appeal. It is also argued that, apparently it is difficult to understand whether the appeal is allowed or dismissed by the First Appellate Court. Interestingly, over- writing in the Judgment of the First Appellate Court makes it doubtful. - 6 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 10. In the light of the submissions made by the learned counsel for the parties and in order to understand the relationship of the parties, the genealogy tree produced is extracted below: GENEALOGY Baseteppa Suranagi Propositus Ningappa Parappa Channabasappa Applnt No.1/ Deft. No.1 Wife Dead issueless Kamaladevi Respondent/Plaintiff Baseteppa Fakirappa Applnt.No.2/ Applnt. No.3/ Deft.No.2 Deft.No.3 11. Perusal of the genealogy tree would indicate that the original propositus - Basetteppa Suranagi (father of the defendant No.1 and father-in-law of the plaintiff) had several properties and he died leaving behind the plaintiff and defendants and another son Channabasappa who died - 7 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 issueless. In the backdrop of these aspects, I have carefully examined the finding recorded by the Trial Court, wherein, defendants have been placed ex-parte as they refused to accept the summons and accordingly, the Trial Court has decreed the suit holding that the plaintiff is entitled for half share in the suit schedule properties. However, in so far as one of the items of the suit schedule properties, the plaintiff has filed R.A.No.28/2009. The operative portion of the Judgment of the First Appellate Court reads as under: ‘ The appeal filed by the appellant is hereby allowed. The judgment and decree *25.02.2009 dt.[30.11.2009] is hereby set aside. Suit of the plaintiff is hereby decreed as prayed for. The plaintiff is entitled for partition and separate possession of half share in the entire suit schedule properties.” Note: *Amendment carried out as per ord dt.21.04.2012.” “Underlined by me” 12. After reading the operative portion of the Judgment and Decree passed by the First Appellate Court, it is very doubtful - 8 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 to understand whether the First Appellate Court has decreed the suit or dismissed the suit. It is also apparent that it is difficult to understand whether the appeal is allowed or dismissed by the First Appellate Court. Interestingly, over- writing in the Judgment of the appeal makes it doubtful. 13. It is also to be noted that defendants in both the Courts below have been placed ex-parte. In that view of the matter, as there is no consideration by the First Appellate Court with regard to answering the points for determination as required under Order 41 Rule 31 of CPC and following the Judgment of the Hon’ble Supreme Court in the case of SANTOSH HAZARI Vs. PURUSHOTTAM TIWARI (DEAD) BY LRS, reported in (2001) 3 SCC 179, I feel that the learned Appellate Judge has misconstrued the provision contained under Order XLI Rule 31 of CPC and has not understood the case properly. It appears even the facts of the case are also not understood properly by the Appellate Judge and rendered the Judgment erroneously and it is difficult for this Court to understand whether the appeal is dismissed or appeal is allowed by the First Appellate Court. - 9 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 14. In that view of the matter, since the appellants herein have been placed ex-parte before both the Courts below and in order to provide fair opportunity to both the parties, it is a fit case to remand the matter to the Trial Court for fresh consideration. Accordingly, without assigning any reasons in so far as the substantial question of law is concerned, since the doubt has been created before this Court with regard to Judgment and Decree passed by both the Court below, I am of the view that, it is a fit case to remand the matter to the Trial Court for proper consideration. 15. Accordingly, the Trial Court is directed to consider the substantial question of law framed by this Court on 06.01.2022 while framing / answering the issues in the suit. 16. Accordingly, the following: ORDER (1) The Regular Second Appeal is allowed. (2) The Judgment and Decree dated 17.04.2010 in R.A.No.28/2002 on the file of the District Judge at Haveri is hereby set aside and the Judgment and Decree dated 25.02.2009 in O.S.No.6/2008 on the file - 10 - NC: 2025:KHC-D:4493 RSA No. 812 of 2013 of Senior Civil Judge and JMFC, Haveri is set aside and the matter is remanded to the Trial Court for fresh consideration. (3) Since the suit is of the year 2008 and in order to avoid further delay in the matter, parties before this Court are directed to appear before the Trial Court on 16.04.2025 at 11.00 a.m. After the appearance of the parties, the Trial Court is directed to provide fair opportunity to both parties and also permit them to lead evidence if any in the matter and thereafter expedite the hearing and conclude the matter at the earliest. 17. Registry is directed to return the original records to the Trial Court for early adjudication in the matter. Pending I.A. if any, does not survive for consideration. Sd/- (E.S.INDIRESH) JUDGE sac CT-MCK List No.: 1 Sl No.: 40