- 1 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100238 OF 2019 (PAR/POS) BETWEEN: SUGEERAPPA BALIGER S/O. CHANNAPPA AGE: 57 YEARS, OCC: AGRICULTURE, R/O: LAKKUNDI-582101, TQ AND DIST: GADAG. …APPELLANT (BY SRI. C.S.SHETTAR, ADVOCATE) AND: 1. ANASAVVA HITABUTTI W/O. MALLAPPA AGE: 59 YEARS, OCC: AGRICULTURE, R/O. LAKKUNDI-582101, TQ AND DIST: GADAG. BASAWWA CHANNAPPA BALIGER DIED PENDING SUIT. 2. VEERAWWA BALIGER D/O. CHANNAPPA AGE: 55 YEARS, OCC: HOUSEWIFE, R/O. LAKKUNDI-582101, TQ AND DIST: GADAG. 3. SURESH HAVERI S/O. HANUMANTAPPA AGE: 45 YEARS, OCC: BUSINESS, R/O. KORAWAR ONI, SIDDARAMESHWAR NAGAR, GADAG -582101, TQ AND DIST: GADAG. …RESPONDENTS (BY SRI. H.N.GULARADDI, ADVOCATE FOR R1; NOTICE TO R2 AND R3 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.11.2018 PASSED IN O.S.NO.11/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.29 15:43:34 +0530 - 2 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is filed by defendant No.2 assailing the preliminary decree drawn in O.S.No.11/2014 wherein the plaintiff is allotted 1/3rd share in the suit schedule properties. Further, it is declared that the sale deed executed by defendant Nos.1 and 3 in favour of defendant No.4 is not binding on the plaintiff’s share. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial court. 3. The facts leading to the case are that; Before we examine the issue on hand, we deem it appropriate to cull out the family tree, which is as under: Channappa S/o. Veerabasappa Baliger (15-11-1983) =Basawwa D1 (02-01-2015) Anasawwa P Sugeerappa D2 Veerawwa D3 - 3 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 4. The plaintiff Anasavva has filed a suit for partition and separate possession contending that suit schedule properties are the joint family ancestral properties and defendant Nos.1 and 3 behind the back of the plaintiff in collusion with the revenue authorities have got their names mutated in the revenue records by tendering a false varadi. The plaintiff is also aggrieved by the alienation made by defendant Nos.1 and 3 in separate two separate sale deeds dated 19.07.2013 in favour of defendant No.4. Hence, the present suit. 5. Defendant No.2 on receipt of summons tendered appearance and filed written statement. Defendant No.2 on the contrary at paragraph 10 of the written statement claimed that during the lifetime of father Channappa, the present plaintiff is allotted 4 acres of land in 463/2 which totally measures 11 acres 9 guntas. She has also allotted 1/3rd share in the house properties in 1971. In paragraph 10, defendant No.2 has also furnished - 4 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 details of mutations indicating sub-divisions in Sy.No.463/2. Hence, sought for dismissal of the suit. 6. The trial court in the absence of rebuttal evidence let in by the defendants has decreed the suit. The said preliminary decree is under challenge. 7. Heard the learned counsel appearing for defendant No.2 and learned counsel appearing for the plaintiff. Perused the records. We have carefully examined the pleadings of the parties. We have also examined the admissions elicited in the cross-examination of P.W.1. The following points would arise for our consideration: 1) Whether proper issues were framed by the learned trial Court Judge? 2) Whether the judgment and decree rendered by the trial court suffers from serious infirmities for want of reasonable opportunity to defendant No.2 to lead rebuttal evidence? - 5 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 3) Whether the suit filed by the plaintiff for partition is maintainable in the light of the pleadings averred in paragraph 10 of the written statement by defendant No.2 and also admissions elicited in the cross-examination of the plaintiff who admits that her father has transferred 4 acres of land in Sy.No.463/2 and 1/3rd share in house property by way of gift? Finding on point No1. 8. The suit is filed by the sister against the brothers and mother. The brother namely, defendant No.2 who has chosen to contest the suit has come with a specific defence that the plaintiff is already enjoying the properties which were allotted to her during the time of her father Channappa. Paragraph 10 of the written statement would be relevant. The same is culled out, which reads as under: “All the above said properties are ancestral properties. This fact is clearly admitted by the plaintiff in the plaint. As per the then Hindu Succession Act, 1956, - 6 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 plaintiff could not demand her legal share in the ancestral properties, during the life time of her parents. Therefore, propositus Channappa gave western 4 acres by way of gift, out of R.S No. 463/2, totally measuring 11A-09Gs, to plaintiff towards her share in the agricultural lands and 1/3rd share in house properties in the year 1971. Accordingly, plaintiff's name is entered to 4 acres by effecting ME No. 7748 and duly certifying the same. Thereafter, R.S No. 463/2, totally measuring 11A-09Gs., is sub-divided into two parts and 4 acres given to plaintiff is numbered as R.S No. 463/2A and remaining portion is numbered as R.S No. 463/2B. In the property extracts of house, the name of plaintiff appears even as on today. Plaintiff has purposely suppressed all these facts. The land given to plaintiff is very fertile and valuable land. Plaintiff has been in possession and enjoying the usufructs of 4 acres of land since 1971 and even as on today. After the death of propositus Channappa, defendants gave wardi to enter their names to the suit properties. At that time, the plaintiff has given her consent (kabuli wardi). Accordingly, ME No. 9849 was effected and duly certified on 20-3-1984. Further, in the year 1984 itself, defendants got effected mutual partition among themselves. In the said partition, northern 4 acres out of R.S No. 113 was given to Defendant No. 1 and middle portion of 4 acres out of R.S No. 113 was given to Defendant No. 3. Remaining properties are fallen to the share of Defendant No. 2. As per the said mutual partition, ME No. 9907 is effected and duly certified on 25-6-1984. Plaintiff is aware of all these facts. - 7 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 Defendant No. 1 (plaintiff's mother) who is in her advanced age is suffering from various ill-ness. Defendant No. 3 (plaintiff's own sister) who is aged about 56 years is un-married even as on today and she is also suffering from various ill-ness. For maintenance and medical expenses, Defendants 1 and 3 have alienated their shares to Defendant No. 4. The plaintiff who has taken her share long back cannot question the alienation made by them. Therefore, the suit filed by plaintiff for partition suppressing all these facts is not maintainable.” 9. We also deems it fit to take cognizance of the relevant portion of the cross-examination of the plaintiff, which reads as under: “FUÀ £Á£ÀÄ ªÁ¸À ªÀiÁqÀÄwÛgÀĪÀ ªÀÄ£É £À£Àß vÀAzÉ PÉÆlÖ ªÀÄ£É. CzÀÄ £À£Àß ºÉ¸Àj£À°è ºÀaÑ®è. £À£Àß vÀAzÉ £À£ÀUÉ PÉÆlÖ ªÀÄ£ÉUÉ £À£Àß ºÉ¸ÀgÀÄ ºÀaÑzÁÝgÉÆà E®èªÉÇà £À£ÀUÉ UÉÆwÛ®è. £À£Àß vÀAzÉ EzÁÝUÀ £À£ÀUÉ MAzÀÄ ªÀÄ£ÉAiÀÄ£ÀÄß PÉÆnÖgÀÄvÁÛgÉ. FUÀ £À£ÀUÉ vÉÆÃj¹zÀ zÁR¯ÉAiÀÄ°è ªÀÄ£ÉUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ ®PÀÄÌAr UÁæªÀÄzÀ UÁæªÀÄ ¥ÀAZÁAiÀÄw JPïì mÁæåPÀ£À°è D¹Û ¸ÀASÉå 1326 gÀ°è £À£Àß ºÉ¸ÀgÀÄ EzÉ JAzÀgÉ ¸Àj. 45 ªÀµÀðzÀ »AzÉ ®PÀÄÌAr UÁæªÀÄzÀ ¸ÀªÉð £ÀA8 463/2 gÀ°è 11 JPÀgÉ 9 UÀÄAmÉ PÉëÃvÀæzÀ°è 1 PÀÆjUÉ ºÉÆ® PÉÆnÖzÁÝgÉ JAzÀgÉ £À£Àß vÀAzÉ EzÁÝUÀ PÉÆnÖzÁÝgÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. DUÀ 11 JPÀgÉ 9 UÀÄAmÉ AiÀÄ°è 4 JPÀgÉ ¨sÁUÀ ªÀiÁr ¸ÀzÀj 4 JPÀgÉ d«ÄäUÉ GvÁgÀ £À£Àß ºÉ¸ÀjUÉ §A¢zÉ JAzÀgÉ ¸Àj. £À£ÀUÉ 4 JPÀgÉ PÉÆlÄÖ G½zÀAvÀºÀ 7 JPÀgÉ 9 UÀÄAmÉ d«ÄãÀÄ 2 £Éà ¥ÀæwªÁ¢ ºÉ¸ÀjUÉ £ÀªÀÄÆzÀÄ ªÀiÁrzÁÝgÉ JAzÀgÉ ¸Àj. MAzÀÄ CAUÀrAiÀÄ£ÀÄß £À£Àß C¥Àà £À£ÀUÉ PÉÆnÖzÁÝgÉ JAzÀgÉ ¸Àj. CzÀÄ ®PÀÄÌAr UÁæªÀÄ ¥ÀAZÁAiÀÄw £ÀA§gÀ 1295 gÀ°è £À£Àß ºÉ¸ÀgÀÄ EzÉ JAzÀgÉ ¸Àj. ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ £Á£ÀÄ - 8 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 ªÀÄzÀĪÉAiÀiÁUÀĪÀ ªÉÆzÀ®Ä £Á£ÀÄ ¨ÉÃqÀ JAzÀgÀÄ PÉÆnÖzÁÝgÉ ¥ÀAZÁAiÀÄw ºÁUÀÆ ¸ÀgÀPÁgÀ ºÀ¥ÉÛAiÀÄ£ÀÄß £Á£É vÀÄA§ÄvÉÛãÉ. £À£ÀUÉ MAzÀÄ zÉÆqÀتÀÄ£É MAzÀÄ CAUÀr EzÉ. £À£Àß vÀAV FgÀªÀé EªÀjUÉ ®UÀß DV®è CªÀgÀÄ 2 £Éà ¥ÀæwªÁ¢ ¸ÀÆVgÀ¥Àà EªÀgÀ ªÀÄ£ÉAiÀÄ°è EzÁÝgÉ JAzÀgÉ ¸Àj, £Á£ÀÄ £À£Àß vÀAzÉ PÉÆlÖ 4 JPÀgÉ d«ÄãÀÄ MAzÀÄ zÉÆqÀØ ªÀÄ£É ºÁUÀÆ MAzÀÄ CArAiÀÄ£ÀÄß F zÁªÉAiÀÄ°è ¸ÉÃj¹®è. £Á£ÀÄ £À£Àß C¥Àà PÉÆlÖ ºÉÆ® CAr¬ÄAzÀ §gÀĪÀAvÀºÀ GvÀà£ÀߤAzÀ £Á£ÀÄ, £À£Àß UÀAqÀ ªÀÄPÀ̼ÀÄ J®ègÀÆ Hl ªÀiÁqÀÄvÉÛêÉ. £À£Àß C¥Àà £À£ÀUÉ PÉÆlÖ D¹ÛAiÀÄ£ÀÄß ºÉÆgÀvÀÄ ¥Àr¹ G½zÀ D¹ÛAiÀÄ£ÀÄß 2 £Éà ¥ÀæwªÁ¢ vÀ£Àß ºÉ¸ÀjUÉ £ÀªÀÄÆzÀÄ ªÀiÁrPÉÆArzÁÝgÉ JAzÀgÉ ¸Àj ¸Àj. 2 £Éà ¥ÀæwªÁ¢ EªÀgÀÄ £À£Àß C¥Àà d«ÄãÀÄ ªÀÄ£É ºÁUÀÆ CAUÀr PÉÆnÖzÁÝgÉ £Á£ÉÃPÀ ¨sÁUÀ PÉÆqÀ° JAzÀ JAzÀgÉ ¸Àj. F jÃw ºÀoÀ ªÀiÁqÀ®Ä 40 ªÀµÀð DVgÀÄvÀÛzÉ. 2 £Éà ¥ÀæwªÁ¢ 40 ªÀµÀð¢AzÀ MAzÀÄ »r PÁ¼À£ÀÄß zÁªÁ ¨sÀƫĬÄAzÀ PÉÆnÖ®è. £ÀªÀÄä C¥Àà ¸ÀvÀÛ 40 ªÀµÀð DzÀgÀÆ G½zÀ D¹ÛAiÀÄ°è ¨sÁUÀ PÉÆr JAzÀÄ £Á£ÀÄ PÉýzÉ »jAiÀÄgÀÄ ºÉýzÀgÀÄ JAzÀgÉ ¸Àj. £À£ÀUÉ PÉÆlÖAvÀºÀ ºÉÆ®zÀ §UÉÎ £Á£ÀÄ PÁUÀzÀ ºÁdgÀÄ ªÀiÁr®è JAzÀgÉ ¸Àj.” 10. A closer and detailed scrutiny of the written statement filed by Defendant No.2, when read in conjunction with the admissions extracted during the cross-examination of the plaintiff, as referenced earlier, reveals that the defendants have indeed raised substantial and relevant contentions that warrant consideration through rebuttal evidence. The nature of these admissions and the legal questions they raise indicate that this is a case where the defendants ought to have been given the - 9 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 opportunity to rebut the plaintiff’s claims through appropriate evidentiary material. While it is true that admissions made in pleadings can sometimes be decisive in resolving disputes, in the present case, there exists ambiguity surrounding a crucial aspect: whether the suit properties, or any part thereof, were lawfully transferred to the plaintiff by her father, Channappa, by way of a gift deed or any other legally recognized mode of transfer. This fundamental question bears directly on the maintainability of the suit for partition. In the absence of any concrete evidence or legal documentation demonstrating a valid transfer in accordance with the law, the trial court ought to have framed an additional issue pertaining to the maintainability of the suit, particularly in relation to whether the properties allegedly allotted to the plaintiff during the lifetime of Channappa fall outside the purview of the partition proceedings. The failure to do so amounts to a serious omission in the judicial process. - 10 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 11. Furthermore, a significant plea raised by the defendants in their written statement concerns the bar of limitation. The defendants have contended that the plaintiff has instituted the present suit nearly four decades after the alleged cause of action arose, specifically seeking partition of the properties that were retained by Channappa and subsequently by his sons. This contention, if substantiated, could render the suit liable to dismissal on the ground of being time-barred. Hence, an issue on limitation clearly arises and should have been framed for adjudication. The fact that such a substantial defence was neither considered nor addressed by the trial court reflects a lapse in appreciating the scope of the pleadings and the legal implications arising therefrom. Moreover, several relevant admissions made by the plaintiff during her cross- examination, which could support the defence of limitation, have also been ignored. Taken together, these oversights point to the necessity of framing additional issues and allowing the defendants an opportunity to lead rebuttal evidence to demonstrate, inter alia, that the - 11 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 present suit is one for partial partition and is not legally maintainable. The trial court is also under a duty to examine whether the properties currently held by the plaintiff were indeed transferred to her in a manner recognized by law. In light of these considerations, we answer Point No.1 in the negative, holding that the trial court has erred in failing to address these vital legal and factual issues. Finding on point No.2: 12. Upon a meticulous perusal of the impugned order, it becomes abundantly clear that the procedure adopted by the learned Trial Judge while recording the evidence is fundamentally flawed and contrary to established principles of natural justice. A close reading reveals that the defendants were not afforded a fair and meaningful opportunity to lead rebuttal evidence. Despite a specific request having been made by the defendants seeking time to adduce their evidence, the learned Judge, without assigning any cogent or legally sustainable - 12 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 reasons, proceeded to reject the said prayer. This denial, in our considered view, is not only procedurally irregular but also substantially unjust. It is pertinent to note that the present suit is one for partition, and the defendants, in their written statement, particularly in paragraph 10, have raised specific and substantial defences that go to the root of the matter. In such a scenario, it was imperative for the learned Judge to have taken due cognizance of those pleadings and permitted the defendants to substantiate their defence by leading appropriate evidence. The refusal to grant even a single opportunity to the defendants has resulted in the denial of a fair trial and, consequently, a miscarriage of justice. This procedural lapse has materially affected the conclusions drawn by the learned Judge, which appear to be based on an incomplete and one-sided evidentiary record. 13. In light of the above discussion, we are firmly of the opinion that the course adopted by the learned Judge is legally untenable and cannot be sustained. The failure to - 13 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 consider the specific pleadings in the written statement, particularly the defence outlined in paragraph 10, coupled with the denial of an opportunity to lead evidence, renders the judgment vulnerable to appellate interference. The conclusions reached by the learned Judge, having been arrived at without appreciating the totality of the pleadings and the evidentiary material that the defendants sought to place on record, stand vitiated. Accordingly, we hold that the learned Judge has committed a grave procedural error in depriving the defendants of an opportunity to present their case. Therefore, point No.2 is answered in the affirmative, and we hold that the judgment under challenge warrants interference for having been rendered in violation of the principles of natural justice and due process. 14. Point No.3 which is now raised by this court needs to be adjudicated by the learned Judge by permitting the defendants to lead evidence. Unless the defendants lead their further evidence, the issue in regard - 14 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 to maintainability of the suit on the ground that it is one for partial partition cannot be decided before this court. Therefore, the matter needs to be remanded back to the trial court, without expressing any opinion on the merits of the case. 15. For the forgoing reasons, we proceed to pass the following: ORDER i) The appeal is allowed. ii) The judgment and preliminary decree dated 19.11.2018 passed in O.S.No.11/2014 by the Principal Senior Civil Judge and CJM, Gadag is hereby set aside. iii) The matter is remitted back to the trial court with a direction to frame an additional issue and permit the defendants to lead their evidence. iv) Post framing an additional issue, if the plaintiff intends to lead her further evidence, the same can be permitted, in accordance with law. - 15 - NC: 2025:KHC-D:6643-DB RFA No. 100238 of 2019 v) Since the parties are represented by their respective counsel, they are hereby directed to appear before the trial court on 12.06.2025 without waiting any notice. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE MBS Ct:vh List No.: 1 Sl No.: 19