- 1 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO. 992 OF 2021 (PAR) BETWEEN: SRI. D.S SADASHIVA S/O LATE D SHIVANNA, AGED ABOUT 49 YEARS, RESIDING AT NO.36/3, SHIVAGIRI 5TH MAIN ROAD, RAMACHANDRA AGHARAHARA CHAMARAJAPET, BANGALORE-560 018. …APPELLANT (BY SRI. SHIVARAJU T.M, ADVOCATE) AND: 1. SMT. MANGALA D/O LATE D SHIVANNA, AGED ABOUT 52 YEARS, RESIDING AT NO.71, GATTIGERE LAYOUT BEML 3RD STAGE, RAJARAGESHWARI NAGARA, BENGALURU-560 098 2. SMT SHYLAJA D/O LATE D SHIVANNA, AGED ABOUT 52 YEARS, Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 RESIDING AT NO.71, GATTIGERE LAYOUT, BEML 3RD STAGE, RAJARAGESHWARI NAGARA, BENGALURU-560 098 3. SRI. HARSHA S/O SHIVAKUMAR, AGED ABOUT 31 YEARS, RESIDING AT CHIKKALALE VILLAGE, KIKKERI HOBLI, K.R PET TALUK, MANDYA DISTRICT. 4. SRI SANDESH S/O SHIVAKUMAR, AGED ABOUT 31 YEARS, RESIDING AT CHIKKALALE VILLAGE, KIKKERI HOBLI, K.R PET TALUK, MANDYA DISTRICT. …RESPONDENTS (BY SRI. S. VIJAYAKUMAR, ADVOCATE FOR R1 & R2, R3 & R4 - SERVED - UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 AND ORDER 41 RULE 1 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.03.2020 PASSED IN OS.NO.2253/2017 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE RAJESH RAI K - 3 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE RAJESH RAI K) Defendant No.1 in O.S.No.2253/2017 is before this Court in this appeal. 2. The learned XXVII Additional City Civil Judge, Bangalore City (for brevity, "the Trial Court") has decreed the suit in part in O.S.No.2253/2017 vide judgment dated 10.03.2020 in the following terms: "The suit of the plaintiffs is hereby decreed in part. The plaintiffs are entitled to ½ share jointly in respect of the suit schedule property by metes and bounds and also entitled to the possession of the same from the defendant no.1. There shall be separate enquiry with regard to the mesne profit under Order 20 Rule 18 of the CPC." 3. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. 4. The abridged facts of the case are as under: - 4 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 The suit in O.S.No.2253/2017 was filed by the plaintiffs against defendant Nos. 1 to 3 for the relief of partition and for a direction to defendant No.1 to effect partition and to put the plaintiffs in separate possession i.e., jointly 1/2 share in the suit schedule property. 5. It is case of the plaintiffs that the plaintiffs and defendant No.1 are children of Late D.Shivanna and Late Sharadamma. They had three daughters (i.e., plaintiffs and Late Komala) and one son (the defendant No.1). Defendants No. 2 and 3 are children of late Komala. 6. It is the further case of the plaintiffs that the father of plaintiffs late D. Shivanna was working in the Revenue Department. He acquired the property bearing No.36/3, 5th Main road, 10th cross, Ramachandra Agrahara, Chamarajpet as described in the schedule as per the registered Sale Deed dated 24.09.1970 from one Sandesh. As per the registered Sale Deed, katha has been made out in his name and taxes have been paid. The plaintiffs and defendants were successors to the estate of deceased D.Shivanna. It is the further case of plaintiffs that after ceremonial function of their mother - 5 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 Sharadamma, who died on 10.03.2017, they approached defendant No.1 for partition and separate possession, but defendant No.1 refused to effect partition of suit schedule property which was succeeded by all the family members of late D.Shivanna. The plaintiffs and defendant No.1 were residing in the said property till 2012 along with their mother Sharadamma. There are three portions, out of which, two portions are let out for rents from 2013. The suit schedule property is available for the family members. The plaintiffs are therefore entitled for their share in the suit schedule property. 7. Further, it is submitted that defendant No.1 was trying to alienate the property to third parties and thereby acting detrimental to the interest of plaintiffs and trying to transact family property behind their back and acting adverse to plaintiffs' interest. Thus, the plaintiffs, after the death of their mother on 10.03.2017, sought for 1/4th share each in suit schedule property and on 21.03.2017 i.e., when defendant No.1 refused to effect partition after ceremonial function, and when the panchayat was held and defendant No.1 flatly refused to effect partition, the plaintiffs, left with no other option, preferred the suit. - 6 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 8. The summons was duly served to all the defendants. Though defendant No.1 appeared through his advocate, did not file written statement. Defendant No.2 has not filed the written statement within statutory time. Defendant No.3 did not appear and contest the suit and as such, he was placed exparte. However, when the case was posted for judgment, they filed an application under Section 151 of CPC to receive the written statement which was dismissed by the Trial Court. Against the said order, defendant No.1 preferred W.P.No.40803/2018. 9. The Trial Court, thereafter, framed the following issues: (1) Whether plaintiff is entitled to the ½ share in respect of the schedule property by metes and bounds? (2) Whether the plaintiff is entitled to the future mesne profits under Order 20 Rule 18 of the CPC? (3) What order or decree? 10. In order to prove the case of the plaintiffs, plaintiff No.2 got examined as PW.1 and got marked Exs.P1 to P6. - 7 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 11. The Trial Court, after considering the oral and documentary evidence, has passed the judgment and decree as aforesaid. 12. Being aggrieved by the said judgment and decree, defendant No.1 is before this Court in this appeal. Defendant Nos.2 and 3 i.e., respondents No.3 & 4 remained unrepresented. 13. We have heard the learned counsel Sri.Shivaraju for the appellant/defendant No.1 and the learned counsel Sri.S.Vijayakumar appearing for the respondent Nos.1 and 2/plaintiffs and perused the records. 14. Learned counsel for the appellant/defendant No.1 contended that the Trial Court has erred while decreeing the suit filed by the plaintiffs without extending an opportunity to the defendants to contest the matter. Further, he contended that defendant No.1 appeared before the Trial Court and filed vakalath through his advocate on 30.05.2017 and sought time to file written statement and thereafter, the matter was posted on 11.07.2018. It is submitted that defendant No.1 filed I.A. - 8 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 under Section 148 of CPC seeking extension of time to file written statement. Thereafter, the matter was posted on 07.09.2017 and 23.10.2017. As there was no representation for defendant No.1, the written statement was taken as nil and the matter was posted for judgment. Further, it is contended that there was a Will executed by the father of defendant No.1 in his favour on 07.06.2005. The said aspect was pleaded in the written statement by defendant No.1, which was not received by the Trial Court. In such circumstance, the Trial Court ought to have granted an opportunity to prove the Will executed by his father by receiving the written statement. 15. Further, it is contended that the suit schedule property was the self-acquired property of the father of defendant No.1 and during his lifetime, the Will was executed in favour of defendant no.1 and as such, decreeing the suit on the ground that there were no contra evidence to disbelieve the case of plaintiffs, that too, without the written statement of the defendants, is untenable. 16. He also contended that the impugned decree has far reaching civil consequences and since appellant/defendant - 9 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 No.1 has valuable defence in the suit, an opportunity deserves to be granted to the appellant to contest the suit on merits. As such, he prays to allow the appeal. 17. Per contra, learned counsel for respondents No.1 and 2/plaintiffs contended that though sufficient opportunity has been provided to the defendants before the Trial Court to file written statement, they failed to file the same and contest the suit. Hence, the Trial Court proceeded without receiving the written statement. 18. He also contended that the suit schedule property is a joint family property and the plaintiffs and defendants, being the successors to the estate of late Shivanna, the suit property is available to the family members and that they are entitled to 1/4th share each in the suit schedule property. He further contended that defendant No.1 was a fence sitter and had intentionally kept quiet till the judgment of the suit and has now come up with this appeal only to drag the final decree proceedings. Accordingly, he prays to dismiss the appeal. - 10 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 19. Having considered the submissions made by the learned counsel for the appellant/defendant No.1 and learned counsel appearing for respondents No.1 and 2/plaintiffs, the only point that arises for our consideration in this appeal is: Whether defendant No.1 deserves to be provided with an opportunity to contest the suit on merits? 20. As could be gathered from records, defendant No.1 has failed to file the written statement within the statutory time. Further, defendant No.1 also filed an I.A No.4 to accept the written statement. However, the same had been dismissed by the Trial Court. Against which, he also filed W.P.No.40803/2018 and the learned Single Judge of this Court passed an order reserving liberty to defendant No.1 to urge his contention in the present appeal. As could be seen from the written statement filed before this Court, it is averred by defendant No.1 that his father executed a Will in his favour on 07.06.2005 in respect of the suit schedule property. The said aspect has to be proved in a full fledged trial. - 11 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 21. Having regard to the aforesaid aspects and having regard to the relief sought for in the suit, which had far reaching consequences, we are of the view that appellant/defendant No.1 deserves to be granted an opportunity to contest the suit on merits. Thus, to balance equities, we make an attempt to recompense the plaintiffs for the difficulty faced, by awarding suitable costs. 22. Consequently, the point for determination raised by this Court is answered in the 'affirmative'. Hence, the following: ORDER i. The appeal is allowed. ii. The impugned judgment and decree dated 10.03.2020 passed by the Trial Court in O.S.No.2253/2017 is set aside. iii. The suit is remitted back to the Trial Court for reconsideration in accordance with law, subject to payment of costs of Rs.25,000/- each payable by defendant No.1 to the plaintiffs before the Trial Court on the date of appearance, failing which, the Trial Court shall dispose off the suit on the same - 12 - HC-KAR NC: 2025:KHC:38373-DB RFA No. 992 of 2021 terms as mentioned in the judgment impugned in this appeal. iv. The parties shall appear before the Trial Court on 03.11.2025 without expecting any further notice from the Trial Court. v. If the Trial Court considers that any fresh issue arises, it may frame issues and thereafter record the evidence of the parties. vi. The Trial Court is directed to dispose off the suit as early as possible and in accordance with the Karnataka (Case Flow management in Subordinate Courts) Rules, 2005. Pending I.As., if any, also stand disposed of. The Registry is directed to return the Trial Court Records if any forthwith to the concerned Trial Court along with the certified copy of this judgment. SD/- (ANU SIVARAMAN) JUDGE SD/- (RAJESH RAI K) JUDGE PKS/List No.: 1 Sl No.: 5