- 1 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO. 2337 OF 2023 (PAR) BETWEEN: 1. SMT. MAARAKKA D/O LATE SRI. POOJAPPA W/O LATE SRI. JAYAPPA AGED ABOUT 47 YEARS 2. SMT. MUNIYAMMA D/O LATE SRI. POOJAPPA W/O LATE SRI. THIMMARAJU AGED ABOUT 44 YEARS APPELLANTS NO.1 AND 2 ARE R/O WARD NO.16, AMBEDKAR COLONY DEVANAHALLI TOWN & TALUK BENGALURU RURAL DISTRICT DEVANAHALLI-562 110. …APPELLANTS (BY SRI. VIGNESHWAR S SHASTRI, SENIOR COUNSEL FOR SRI. H. VENKATESHA DODDERI, ADVOCATE) AND: 1. SMT NARAYANAMMA W/O LATE SRI. POOJAPPA Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 AGED ABOUT 86 YEARS 2. SMT. MUTHAMMA W/O LATE SRI. MARAPPA AGED ABOUT 45 YEARS 3. SRI. VENKATESH DEAD BY LRS OF R3 R3(a) SMT. ARUNAMMA W/O LATE VENKATESH AGED ABOUT 41 YEARS R3(b) SMT. CHAITRA D/O LATE VENKATESH AGED ABOUT 25 YEARS R3(c) SRI. MANOJ S/O LATE VENKATESH AGED ABOUT 23 YEARS 4. SRI. NARAYANASWAMY S/O LATE SRI. POOJAPPA AGED ABOUT 45 YEARS 5. SRI. GANGARAJU S/O LATE SRI. POOJAPPA AGED ABOUT 42 YEARS RESPONDENTS NO.1 TO 5 ARE R/O WARD NO. 16, DEVANAHALLI DEVANAHALLI TOWN BENGALURU RURAL DISTRICT DEVANAHALLI-562 110 6. SMT. NASEEMUNNISA W/O SRI. APSARPA PASHA AGED ABOUT 55 YEARS R/O WARD NO.5, TALUK OFFICE ROAD, DEVANAHALLI TOWN & DISTRICT - 3 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 BENGALURU RURAL DISTRICT DEVANAHALLI-562 110 …RESPONDENTS (BY SRI. M. MUNI KRISHNA, ADVOCATE FOR R1, R2, R3(A-C), R4 & R5, R6 - SERVED - UNREPRESENTED) THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.05.2023 PASSED IN OS NO.1119/2021 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, 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 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE RAJESH RAI K) Defendant Nos.1 and 2 in O.S. No.1119/2021 on the file of the Principal Senior Civil Judge and J.M.F.C., at Devanahalli, (hereinafter referred to as "the Trial Court") have filed this regular first appeal challenging the judgment and decree dated 23.05.2023 by which the suit in O.S.No.1119/2021 was decreed with costs and declared that the plaintiffs were jointly entitled for 5/7th share in the suit schedule property and consequently, the Sale Agreement executed by late - 4 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 Narayanaswamy in favour of defendant No.3 on 15.10.2018 is not binding on the plaintiffs. 2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. 3. The suit in O.S. No.1119/2021 was filed by the plaintiffs for relief of partition and separate possession for their joint 5/7th share in the property bearing Sy.No.62/1, measuring 20G of Akkupete Village (hereinafter referred to as "the suit schedule property" for short) and for such other relief. 4. The plaintiffs contended that, one Poojappa S/o Marappa was the propositus of the joint family consisting of plaintiffs and defendant Nos.1 and 2. The said Poojappa was having two wives namely Akkayamma and Narayanamma. The first wife Akkayamma and Poojappa both died and the legal representatives of Smt. Akkayamma are the defendant Nos.1 and 2 and late Narayanaswamy. The plaintiff No.1 is the second wife of Poojappa and the plaintiff No.2 is the daughter-in-law of plaintiff No.1. Plaintiff Nos.3 to 5 are the children of plaintiff No.1 and late Poojappa. The suit schedule property was - 5 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 purchased by late Poojappa (who is the husband of plaintiff No.1, father-in-law of plaintiff No.2 and father of plaintiffs No.3 to 5) and they were in joint possession and enjoyment during the lifetime of late Poojappa. A portion of the property was sold by late Poojappa along with plaintiffs and defendant Nos.1 and 2 during his lifetime. Thereafter, the plaintiffs and defendant Nos.1 and 2 were in joint possession over the suit schedule property. There is no partition in the family of the plaintiffs and defendant Nos.1 and 2. The plaintiffs are illiterates and by taking advantage of their ignorance, the defendant Nos.1 and 2 and late Narayanaswamy have collusively obtained change of Khatha of the suit schedule property in their names and late Narayanaswamy had executed a Sale Agreement in favour of defendant No.3 on 15.10.2018 which was registered on 03.11.2018. The plaintiffs have not consented for the said Sale Agreement and therefore, by giving the date of cause of action as the date of Sale Agreement on 15.10.2018, the plaintiffs have filed the suit and they have prayed for the decree. 5. Defendant Nos.1 to 3 in the suit were served with summons and defendant Nos.1 and 2 appeared through their - 6 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 counsel. However, defendant No.3 was placed ex-parte. Defendant Nos.1 and 2 did not file any written statement. The Trial Court, thereafter, recorded evidence on the issues framed. Plaintiff No.5 - Gangaraju was examined as PW.1 and he marked 6 documents as Exs.P1 to P6. PW.1 was not cross- examined by any of the defendants. The Trial Court therefore after considering the oral and documentary evidence, held that the plaintiffs had proved that they were the lawful owners of the suit schedule property and consequently, declared them to be the owners. It further declared that the Sale Agreement dated 15.10.2018 executed by Late Narayanaswamy in favour of defendant No.3 was not binding on the plaintiffs. Further, allotted 5/7th Share in the suit schedule property to the plaintiffs. 6. Being aggrieved by the said judgment and decree, defendant Nos.1 and 2 are before this Court in this appeal. 7. We have heard the learned Senior Counsel Sri Vighneshwar S.Shastri for the appellants and Sri M.Muni Krishna, learned counsel for respondents 1 to 5 and perused the records placed before us. - 7 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 8. Learned counsel for defendant Nos.1 and 2/appellants contended that though defendant Nos.1 and 2 had engaged a counsel, due to reasons beyond their control, they could not instruct their counsel to conduct the proceedings before the Trial Court. He contends that the impugned decree has far reaching civil consequences inasmuch as the Executing Court drawing the final decree and since defendant Nos.1 and 2 have valuable defence in the suit, an opportunity deserves to be granted to defendant Nos.1 and 2 to contest the suit on merits. 9. Per contra, the learned counsel for the plaintiffs / respondent Nos.1 to 5 contended that defendant Nos.1 and 2 have not even whispered about their defence in the suit and therefore, an opportunity to contest the suit cannot be granted for the mere asking unless they make out a ground to unsettle the judgment and decree passed by the Trial Court. He further contends that the material placed on record justified in granting 5/7th share to the plaintiffs in the suit schedule property and for consequential relief and thus, prays that the appeal filed by the defendants be dismissed. - 8 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 10. Having considered the submissions made by the learned counsel for the plaintiffs and defendant Nos.1 and 2, the only point which arises for consideration in this appeal is: Whether defendant Nos.1 and 2 deserve to be provided with an opportunity to contest the suit on merits? 11. It is not in dispute that defendant Nos.1 and 2 had engaged a counsel to contest the suit and the counsel had entered appearance. However, the defendants neither filed any written statement, nor did cross-examine the witness, who was examined in favour of the plaintiffs and have not entered the witness box to adduce evidence in support of their claim. They also did not address arguments on the merits of the suit. At least, when this appeal was filed, they must have disclosed their defence so that this Court could have assessed the need to remit the case to the Trail Court for re-consideration. Nonetheless, the defendants cannot be penalised for the lapse on the part of their counsel. Having regard to the relief sought for in the suit which had far reaching consequences, though defendant Nos.1 and 2 did not point out any circumstance - 9 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 which prevented them from instructing their counsel to contest the suit, yet an opportunity deserves to be granted to the defendants to contest the suit on merits. However, we cannot ignore the time lost by the plaintiffs in pursuing the litigation and the expenses incurred. Therefore, though our heart sways towards defendant Nos.1 and 2, but our mind is clutched with the plaintiffs, who have contended that unsettling the judgment would cause hardship to them. Thus, to balance equities, we make an attempt to recompense the plaintiffs for the difficulty faced, by awarding suitable costs. 12. Consequently, the point for determination raised by this Court is held in favour of defendant Nos.1 and 2, which is however subject to payment of costs as mentioned below. Hence, the following: ORDER i. The appeal is allowed. ii. The impugned judgment and decree dated 23.05.2023 passed by the Trial Court in O.S.No.1119/2021 is set aside. iii. The suit is remitted back to the Trial Court for reconsideration in accordance with law, subject - 10 - HC-KAR NC: 2025:KHC:29196-DB RFA No. 2337 of 2023 to payment of costs of Rs.50,000/- payable by defendant Nos.1 and 2 to the plaintiffs before the Trial Court, failing which, the Trial Court shall dispose off the suit on the same terms as mentioned in the judgment impugned in this appeal. iv. The parties shall appear before the Trial Court on 22.09.2025 without expecting any further notice from the Trial Court. v. It is made clear that defendant Nos.1 and 2 shall pay costs and file their written statement on the said day. vi. If the Trial Court considers that any fresh issue arises, it may frame issues and thereafter record the evidence of the parties. vii. 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. SD/- (ANU SIVARAMAN) JUDGE SD/- (RAJESH RAI K) JUDGE PKS/List No.: 1 Sl No.: 15