- 1 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 9TH DAY OF SEPTEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100077 OF 2022 (DEC/PAR-) BETWEEN: SMT. SHANTAVVA W/O. ASHOK JYOTI, AGE ABOUT 57 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O. MARADAGI, TQ: AND DIST: DHARWAD-580032. …PETITIONER (BY SRI. K.L. PATIL & SRI. SOURABH A. SONDUR, ADVOCATES) AND: 1. NINGAPPA S/O. BASAPPA NEGINAHAL, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. SHIVALLI, TQ: AND DIST: DHARWAD-580112. 2. BASAPPA S/O. NINGAPPA NEGINHAL, AGE: 35 YEARS, OCC: AGRICULTURE, TQ: AND DIST: DHARWAD-580112. …RESPONDENTS (BY SRI. G.S. KANNUR, SENIOR COUNSEL FOR SRI. LAXMAN T. MANTAGANI, ADVOCATE FOR R1 & R2) THIS RFA IS FILED UNDER SECTION 96(1) OF CPC., PRAYING TO THAT THE JUDGMENT AND DECREE DATED 16.11.2019 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD IN O.S.NO.120/2015, BE SET ASIDE AND THE SUIT FILED BY THE APPELLANT/PLAINTIFF, MAY KINDLY BE DECREED BY ALLOWING YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 THIS APPEAL WITH THE COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY AND ETC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) Taking exception to the impugned judgment and decree dated 16.11.2019 in O.S.No.120/2015 passed by the Principal Senior Civil Judge and C.J.M Dharwad1, whereby the said suit filed by the appellant/plaintiff against the respondents/ defendants for partition and separate possession of her alleged share in the suit schedule properties was dismissed by the Trial Court, the present first appeal is filed. 2. Briefly stated, the facts giving rise to the present appeal are as under: (a) It is an undisputed fact and a matter of record that the plaintiff-Shantavva and defendant No.1-Ningappa are 1 Hereinafter referred to as ‘Trial Court’ - 3 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 children of late Basappa and Dyamavva. Defendant No.2- Basappa is the son of defendant No.1-Ningappa. It is matter of record and undisputed fact that late Basappa and Dyamavva had one more daughter viz., Nagavva, who died unmarried and issueless, leaving behind the plaintiff and defendant No.1 to succeed to their estate including the suit schedule immovable properties comprising of ‘A’ schedule to ‘E’ schedule properties. The plaintiff instituted the aforesaid suit, inter alia, contending that she and defendant Nos.1 and 2 were members of a Hindu undivided family and that she was entitled to her legitimate share in the suit schedule properties. (b) The defendants having entered appearance, disputed and denied the various claims and contentions of the plaintiff and contended that the plaintiff had executed an unregistered relinquishment deed dated 18.09.1991 in favour of defendant No.1 and their mother Smt.Dyamavva relinquishing/releasing and abandoning her right, title, interest, possession, share, etc., over the suit schedule properties in favour of the defendant No.1 by receiving gold ornaments as well as a sum of ₹50,000/- and consequently in the light of aforesaid relinquishment/release - 4 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 deed dated 18.09.1991 executed by the plaintiff in favour of defendant No.1 and her mother, the plaintiff ceased to have any manner of right, title, interest or possession over the suit schedule properties and that the suit was liable to be dismissed. 3. 3. Based on the aforesaid pleadings, the Trial Court framed the following issues: 1) Whether the Plaintiff proves that she and Defendants are the members of the Hindu Undivided family and all the scheduled properties are the ancestral properties of them? 2) Whether the Defendant No.1 proves that Plaintiff has executed a relinquishment deed in lieu of her taking share by way of cash and kind? 3) Whether the Defendants No.1 and 2 proves that suit is bad for conjoiner of necessary parties? 4) Whether the Defendants No.1 and 2 further prove that suit is hopelessly barred by limitation? 5) Whether the Defendants No.1 and 2 further prove that present suit without the relief of declaration of title not maintainable? 6) Whether the Defendants No.1 and 2 further prove that suit valuation and payment of Court fee are incorrect and insufficient 7) Whether the Plaintiff entitled to plaint reliefs? - 5 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 8) What Order or Decree? 4. The plaintiff examined herself as PW1 and the two witnesses as PW2 and PW3. Documentary evidence at Exs.P1 to P16 were marked. The defendants examined the defendant No.1 as DW1 and the two witnesses as DW2 and DW3. Documentary evidence at Exs.D1 to Ex.D3 were marked. 5. Heard Sri.K.L.Patil and Sri.Sourabh A Sondur, learned counsels, appearing for the appellant, and Sri.G.S.Kannur, learned Senior Counsel for Sri.Laxman T Mantagani, learned counsel for the respondent Nos.1 and 2. 6. In this context, it is relevant to state that the alleged relinquishment deed/release deed was marked through the evidence of DW1 as Ex.D3, which was one of the main pieces of documentary evidence relied upon by the defendants in support of their contention that the plaintiff had relinquished/released her alleged share in the suit schedule properties in favour of her brother-defendant No.1. 7. A perusal of the order sheet maintained by the Trial Court as well as the deposition of DW1 will indicate that pursuant - 6 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 to the cross-examination of DW1 being conducted in part on 11.07.2019, the matter was adjourned by the Trial Court, who thereafter did not further permit the plaintiff to cross-examine the DW1 and instead proceeded to record the evidence of DW2 and DW3 pursuant to which, the Trial Court proceeded to pass the impugned judgment and decree dismissing the suit of the plaintiff. While a perusal of the impugned judgment and decree will indicate that apart from relying upon the other evidence on record, the Trial Court has also placed reliance upon the evidence of DW1 and documentary evidence at Ex.D3 marked through the evidence of DW1. 8. As stated supra, the evidence of DW1 had not been completed and the same was deferred and due to oversight/inadvertence and despite completion of evidence of DW2 and DW3, the evidence of DW1 had not been completed and the same was subsequently not recalled for further cross- examination. Under these circumstances, we are of the view that the Trial Court clearly fell in error in placing reliance upon the evidence of DW1 and the documentary evidence at Ex.D3, without appreciating that the evidence of DW1 had not been - 7 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 completed since his cross-examination had been deferred on 11.07.2019, when his cross-examination had not been fully completed by the plaintiff. 9. Under these circumstances, though several contentions are urged by both sides in support of their respective claims on this short ground alone i.e., the non completion of cross-examination of DW1 and in the light of the joint submission made by both sides that since DW1 was not completely cross- examined and it is necessary that his cross-examination is to be completed by setting aside the impugned judgment and decree and remitting the matter back to the Trial Court for reconsideration afresh in accordance with law, we deem it just and appropriate to set aside the impugned judgment and decree and remit the matter back to the Trial court for reconsideration afresh in accordance with law by issuing certain directions and by leaving/keeping open all contentions. Hence, the following: ORDER i) The appeal is hereby allowed; - 8 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 ii) The judgment and decree dated 16.11.2019 in O.S.No.120/2015 passed by the Principal Senior Civil Judge and C.J.M Dharwad is hereby set aside and the matter is remitted back to the Trial Court for reconsideration afresh in accordance with law; iii) The parties are directed to appear before the Trial Court on 14.10.2025 without awaiting further notice from the Trial Court; iv) The respondents shall keep DW1 present before the Trial Court on the date to be fixed by the Trial Court; v) The plaintiff shall complete the cross- examination of DW1 on a date to be fixed by the Trial Court; vi) Liberty is reserved in favour of the parties to adduce further oral/documentary evidence in support of their respective claims; - 9 - HC-KAR NC: 2025:KHC-D:11623-DB RFA No. 100077 of 2022 vii) Liberty is also reserved in favour of the parties to file appropriate interlocutory application(s), which shall be considered and disposed of by the Trial Court after providing an opportunity to the opposite party in accordance with law; viii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same including Ex.D3; ix) The Trial Court shall dispose of the suit as expeditiously as possible. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE YAN CT-MCK List No.: 1 Sl No.: 30