- 1 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.6083 OF 2011 BETWEEN: 1. SIDDAPPA BALU LAVATE, SINCE DECEASED BY HIS L.RS. 1A. DATTAREYA S/O. SIDDAPPA LAVATE, AGE: 56 YEARS, OCC: SERVICE, R/O: NO.11/7B, MAHALAXMI PARK, RING ROAD, PHULEWADI, KOHAPUR – 416 010. 1B. SATISH S/O. SIDDAPPA LAVATE, AGE: 54 YEARS, OCC: SERVICE, R/O: NO.214/3/9, OPPOSITE TO MUSALE HIGH SCHOOL, CHIDANAND NAGAR, SANGLI ROAD,ICHALAKARANJI – 416 115, TAL: HATHAKANAGLE, DIST: KHOLAPUR. 1C. SMT. LAXMI W/O. APPASO BANNE, AGE: 48 YEARS, OCC: HOUSE HOLD, R/O: BENADI – 591 215, TAL: NIPPANI, DIST: BELAGAVI. …APPELLANTS (BY SRI. RAVI S. BALIKAI, ADVOCATE) AND: 1. SUJATA D/O. SATAPPA GORE, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: BENADI – 591 215, TQ: CHIKODI, DIST: BELAGAVI. 2. SHAKUNTALA W/O. SATAPPA GORE, AGE: 65 YEARS, OCC: HOUSEHOLD, R/O: BENADI – 591 215, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 TQ: CHIKODI, DIST: BELAGAVI. 3. SHRI. PRAKASH S/O. SATAPPA GORE, AGE: 39 YEARS, OCC: SERVICE, R/O: BENADI – 591 215, TQ: CHIKODI, DIST: BELAGAVI. 4. SHRI. RAKESH SATAPPA GORE, AGE: 35 YEARS, OCC: SERVICE, R/O: BENADI – 591 215, TQ: CHIKODI, DIST: BELAGAVI. 5. SMT. SUREKA W/O. BASAVRAJ NARALIKAR, AGE: 41 YEARS, OCC: HOUSEHOLD AND SERVICE, R/O: SAVANUR – 581 118, DIST: HAVERI, PRESENTLY WORKING AT DISTRICUT COURT BELGAUM. 6. SMT. VIDYA W/O. BHIMRAO KAMBLE, AGE: 34 YEARS, OCC: HOUSEHOLD, R/O: BENADI – 591 215, TQ: CHIKODI, DIST: BELAGAVI. …RESPONDENTS (BY SRI. M.H.PATIL, ADVOCATE FOR R1 TO R6) THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 22.09.2011 PASSED BY THE FAST TRACK COURT – I CHIKODI IN R.A.NO.9/2010; SET ASIDE THE JUDGMENT AND DECREE DATED 08.01.2010 PASSED BY THE ADDITIONAL CIVIL JUDGE JR.DN. NIPANI IN O.S.NO.111/2005; ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN OS.S.NO.111/2005 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE JR. DN. NIPANI AND ETC., THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This Regular Second Appeal is filed by defendant No.6 now represented by his legal representatives, aggrieved by the judgment and decree dated 08.01.2010 passed in O.S. No. 111/2005 on the file the Additional Civil Judge (Jr.Dn), Nipani, confirming the judgment and decree dated 22.09.2011, passed in R.A. No.9/2010 on the file of Fast Track Court- I, Chikkodi, whereby the suit filed for partition and separate possession was decreed holding that the plaintiff and defendants No.1 to 3, 5, and 6 each entitled for 1/6th share in the suit schedule property. 2. The parties are referred as per their rankings before the Trial Court. 3. This Court by order dated 05.07.2012 admitted the appeal to consider the following substantial questions of law:- “1) Whether O.S.111/05 instituted by the 1st respondent, female heir, for declaration, partition and separate possession of suit schedule property without seeking - 4 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 the very same relief in respect of joint family properties bearing Sy.No.365/1A, 83/41, 84/48, 85/9, 110/14 and 83/40 as set out in Ex.P9, mutation extract No. 6814 dt. 26/12/1980? (2) Whether the Trial Court was justified in recording a finding that the testimony of DW-2 was not acceptable since Satappa Nana Gore, the vendor of the appellant was shown to be aged 40 years on 2/6/1976 when Ex.D12-sale deed was executed conveying the suit schedule property which was said to be 30 years old and therefore Satappa Nana Gore, was around 10 years of age and hence highly improbable to believe that the boy aged 10 years could put up the construction of a building? (3) Whether the Trial Court was justified in concluding that the deceased Satappa Nana Gore had deserted this wife and children who were living at Ghattaprabha on the date of execution of the sale deed? (4) Whether the Trial Court was justified in concluding that the deceased Satappa Nana Gore was addicted to wine and deserted his family members in the absence of the appellant placing relevant material to establish legal necessity? (5) Whether the Trial Court was justified in rejecting the plea of limitation for institution of the suit filed on 25/8/2005 without seeking a declaration over the validity of the sale deed dt. 2/6/1976? (6) Whether the Trial Court was justified in concluding that the plaintiff being a female heir was entitled to claim partition in respect of the suit schedule property which was alienated in the year 1976 by exercising her rights under amended Sec. 6 of the Hindu Succession Act, 1956? (7) Whether the Lower Appellate Court was justified in dismissing the appeal without passing the orders on I.A.2 under Order 41 Rule 27 CPC for production of additional evidence and I.A.3 under Order 6 Rule 17 for amendment of the written statement?” - 5 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 4. Learned counsel for the appellant/defendant No.6 pointing out to substantial question No.7 submits that the First Appellate Court has not passed any order on IA No.2 filed under Order 41 Rule 47 of CPC for the production of additional evidence and I.A. No.3 filed under Order VI Rule 17 R/w. Section 151 of CPC, seeking amendment of the written statement. 5. He submits that defendant No.6 purchased the suit schedule property in the year 1976. At that time, the plaintiff was a one year old toddler. The suit in question came to be filed in the year 2005 i.e. after lapse of nearly 3 decades. 6. He submits that though the defendant no.6 had raised the plea in the written statement regarding the purchase being made for family necessity, he had not given particulars of the said necessity. Therefore, he had filed application under Order VI Rule 17 R/w. Section 151 of CPC, seeking amendment of the written statement before the First Appellate Court. As regard the allegation made by the plaintiff concerning her deceased father - 6 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 Stattppa being allegedly addicted to bad vices, the appellant had attempted to bring on record certain documents in the nature of subsequent alienation made by said Sattappa and his son who are defendant Nos.2 and 3 by way of amended. He submits that the said applications were necessary and consideration of the same was imperative for the proper and effective adjudication of the suit. However, the First Appellate Court without passing any orders on the said applications proceeded to dismiss the appeal. 7. He relies upon the decisions of the Hon’ble Supreme Court in the case of Sanjiv Goel V/s Avatar S Sandhu, reported in (2006) 9 SCC 748 and Hakam Singh V/s State of Haryana and others, reported in (2008) 12 SCC 768 in support of the submission that non-disposal of applications by the Appellate Court while disposing of the appeal would result in setting aside of the order and remanding the matter for fresh consideration. 8. Learned counsel for the respondents fairly submits that the aforesaid applications were not - 7 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 considered by the First Appellate Court and prays that the matter may be remanded for fresh consideration. 9. Submission is taken on record 10. It is settled position of law that any interlocutory application filed before the First Appellate Court, is required to be disposed of in the manner known to law. Non disposal of the said application would be lead to miscarriage of Justice. 11. In the instant case, admittedly as noted above, the application filed by appellant/defendant No.6 who is the purchaser of the property seeking to produce additional documents in IA No. 2 filed under Order 41 Rule 47 of CPC and an application seeking amendment of written statement to bring on material fact by filing I.A. No.3 filed under Order VI Rule 17 R/w. Section 151 of CPC have remained undisposed/undecided. 12. In the light of the aforesaid aspect of the matter and the judgment of Apex Court referred to above and in the light of the submission made by the learned counsel for the parties, this Court is of the considered - 8 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 view without going to the merits of the case in considering the substantial question of law Nos.1 to 6 noted above, this Court has answered substantial question No.7. Consequently, non consideration of IA Nos.2 and 3 by the First Appellate Court and disposal of the same warrant interference at the hands of this Court. Accordingly, substantial question No.7 is answered in the negative. 13. Accordingly, I pass the following: ORDER i) The appeal is allowed. ii) The judgment and decree dated 22.09.2011, passed in R.A. No.9/2010, by the Fast Track Court - I, Chikkodi is hereby set aside. iii) The matter is remitted to the First Appellate Court with a direction to consider I.A. No.2 filed under Order XLI Rule 27 R/w. Section 151 of CPC and I.A.No.3 filed under Order VI Rule 17 R/w. Section 151 of Code of Civil Procedure, after affording opportunity of hearing to both - 9 - HC-KAR NC: 2025:KHC-D:8501 RSA No. 6083 of 2011 the parties and pass appropriate orders thereon. iv) The First Appellate Court is directed to dispose of the said applications and the appeal as expeditiously as possible within an outer limit of six months from the date of receipt of the certified copy of this judgment. v) Since, the parties represented by their respective counsel, they shall appear before the First Appellate Court on 12.08.2025 without further notice. vi) All contentions are kept open. Sd/- (M.G.S. KAMAL) JUDGE VMB/CT-ASC List No.: 1 Sl No.: 19