- 1 - NC: 2025:KHC-D:553 RFA No. 100072 of 2014 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100072 OF 2014 (PAR) BETWEEN: BASAVARAJ S/O. NINGAPPA BEDSUR, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: HDMC NO.42/2, GOUDAR ONI, SAIDAPUR, DHARWAD. …APPELLANT (BY SRI SATISH RAICHUR, ADVOCATE) AND: 1. MALLAWA W/O. GURAPPA MANNUR, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: TADAHAL, TQ: NAVALGUND, DIST: DHARWAD. 2. SHANTAWWA W/O. NINGAPPA BEDSUR, SINCE DECEASED HER LR’S ALREADY ON RECORD AS A APPLICATION NO.1 AND RESPONDENT NO.1,3,4,5(A) TO 5(D) 3. SHANKRAPPA @ SHIVASHANKAR S/O. NINGAPPA BEDSUR, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: CHIKKUMBI, TQ: SOUNDATTI, DIST: BELAGAVI-591106. 4. SUNANDA D/O. NINGAPPA BEDSUR, AGE: 53 YEARS, OCC: NIL, R/O. CHIKKUMBI, TQ: SOUNDATTI, DIST: BELAGAVI-591106. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:553 RFA No. 100072 of 2014 5. RUDRAPPA S/O. NINGAPPA BEDSUR, SINCE DECEASED HIS LR’S AMENDED CARRIED OUT AS PER ORDER DATED 19.11.2024 5(A) SMT. SUDHA W/O. RUDRAPPA BEDSUR, AGE: 45 YEARS, OCC: HOUSEHOLD, 5(B) SUNIL S/O. RUDRAPPA BEDSUR, AGE: 24 YEARS, OCC: AGRICULTURE, 5(C) ANIL S/O. RUDRAPPA BEDSUR, AGE: 22 YEARS, OCC: AGRICULTURE, 5(D) UDYAKUMAR S/O. RUDRAPPA BEDSUR, AGE: 20 YEARS, OCC: AGRICULTURE, ALL ARE R/O. CHIKKUMBI, TQ. SOUNDATTI, DIST. BELAGAVI-591106. …RESPONDENTS (BY SRI S.L. MATTI, ADVOCATE FOR R1; R2 – DECEASED – ALL REMAINING RESPONDENTS ARE LR’S OF R2 V/O DATED 03.10.2023; NOTICE TO R3, R4 AND R5 ARE SERVED; R1 AND R5 (PROPOSED R5) (A to D) ARE SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 41 RULE 5(1) R/W. SEC.151 OF CPC., 1908, PRAYING TO I) SET ASIDE THE JUDGMENT AND DECREE DATED 13.03.2014, PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG, IN OS.NO.96/2012, II) ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN OS NO.96/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG AND ETC., THIS REGULAR FIRST APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:553 RFA No. 100072 of 2014 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This Regular First Appeal is filed by defendant No.2 challenging the judgment and decree dated 13.03.2014 passed in O.S.No.96/2012 on the file of Additional Senior Civil Judge, Gadag (hereinafter referred to as ‘the Trial Court’). 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 has filed suit for partition and separate possession by metes and bounds in respect of the suit schedule properties. One Ningappa was the original propositus of the family and he died in the month of February-2012. Defendant No.1 is the wife of said Ningappa. The plaintiff and defendant Nos.2 to 5 are children of Ningappa and defendant No.1. It is the case of the plaintiff that the suit properties are ancestral and joint family properties, therefore, the plaintiff has filed suit for partition for claiming 1/6th share in the suit schedule properties. - 4 - NC: 2025:KHC-D:553 RFA No. 100072 of 2014 4. In order to prove the case, the plaintiff was examined as PW-1 and got marked 12 documents as Ex.P-1 to Ex.P-12. Ex.P-1 to Ex.P-4 are the mutation extracts, Ex.P-5 to Ex.P-8 are the record of rights and Ex.P-9 to Ex.P- 12 are the property extracts. 5. Defendant No.3 has filed written statement and defendant Nos.1 and 5 have adopted the written statement filed by defendant No.5. The defendant No.2 has not filed written statement and not subjected the PW-1 to cross- examination. 6. The Trial Court by accepting the evidence of PW-1 has decreed the suit by granting 1/6th share to the plaintiff and defendant Nos.1 to 5 each. 7. Defendant No.2 has preferred this appeal by contending that some of the suit schedule properties are his self acquired properties. Therefore, they are not amenable for partition and he has not filed written statement, hence, he could not able to take defence that some of the properties are his self acquired properties. Further, argued that - 5 - NC: 2025:KHC-D:553 RFA No. 100072 of 2014 defendant No.4 is mentally unsound person and therefore, without taking recourse as per Mental Disabilities Act, 2016 (hereinafter referred to as the ‘Act of 2016’), the suit is proceeded with, therefore the decree is detrimental to the interest of defendant No.4. Hence, on these grounds, prays this Court to remand the matter. 8. Heard arguments from both sides and perused the material placed on record. 9. Upon perusal of the judgment and decree, it is found that though defendant No.2 has appeared in the suit, but has not filed the written statement and though defendant Nos.1, 3 and 5 have filed written statement, but have not led evidence. It is submitted that defendant No.4 is mentally unsound person. When this being the fact, recourse ought to have been taken as per provisions of Act of 2016. 10. Therefore, considering all these reasons, to give one more opportunity to the defendants to defend their case by leading evidence and also to file written statement, the case is required to be remanded to the Trial Court for fresh - 6 - NC: 2025:KHC-D:553 RFA No. 100072 of 2014 consideration. The Trial Court is also directed to get examine whether the defendant No.4 is mentally fit or insane person. If defendant No.4 is insane person, recourse has to be taken as per provisions under the Act of 2016. Therefore, the judgment and decree passed by the Trial Court is required to be set aside and remand the matter to the Trial Court for fresh consideration. The defendant Nos.1, 3 and 5 have filed written statement, but have not chosen to cross-examine PW.1. Therefore, at this instance, now the appeal is required to be remanded to the Trial Court for fresh consideration. 11. Accordingly, the appeal is liable to be allowed with cost of Rs.10,000/- payable by defendant No.2/appellant to the plaintiff. 12. Hence, I proceed to pass the following: ORDER a) The appeal is allowed. b) The judgment and decree passed in O.S No.96/2012 dated 13.04.2014 by the Court of Additional Senior Civil Judge, Gadag is - 7 - NC: 2025:KHC-D:553 RFA No. 100072 of 2014 hereby set aside and the case is remanded to the Trial Court for fresh consideration. c) Both the parties are directed to appear before the Trial Court on 03.02.2025 without expecting any notice from the Court. d) The defendant No.2 is permitted to file written statement within one week from the date of 03.02.2025. e) Both the parties are given liberty to adduce their evidence, if it so deserve, either oral or documentary or both. f) The Trial Court is directed to conclude the trial and pass the judgment and decree within a period of four months from 03.02.2025 as per law. g) The defendants shall appear and co-operate with the Trial Court for earlier disposal of the suit within the time frame as mentioned above. h) All contentions of the parties are left open. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA-para 1 to 7 PMP-para 8 to end List No.: 1 Sl No.: 24