- 1 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 07TH DAY OF JANUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100481 OF 2018 (PAR-POS) BETWEEN: 1. PUSHPA KALAL W/O. SHANMUKHAPPA AGE: 48 YEARS, OCC: HOUSEHOLD, R/O: CTS 6586/73/1, AMRUT WINE SHOP, BETAGERI, GADAG-582101. 2. GAYATRI KALAL W/O. HANAMANTA AGE: 28 YEARS, OCC: HOUSEHOLD, R/O: HAVERI NOW AT CTS 6586/73/1, AMRUT WINE SHOP, BETAGERI GADAG-582101. 3. MAHANTESH KALAL S/O. SHANMUKHAPPA AGE: 26 YEARS, OCC: BUSINESS, R/O: CTS 6586/73/1, AMRUT WINE SHOP, BETAGERI GADAG-582101. 4. LOKESH KALAL W/O. SHANMUKHAPPA AGE: 48 YEARS, OCC: HOUSEHOLD, R/O: CTS 6586/73/1, AMRUT WINE SHOP, BETAGERI GADAG-582101. …APPELLANTS (BY SRI. C.S.SHETTAR, ADVOCATE) Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 AND: 1. RENAVVA KALAL W/O. SHIDDAPPA AGE: 53 YEARS, OCC: HOUSEHOLD, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582101. 2. UMA @ UMASHREE KALAL W/O. SANTOSH AGE: 26 YEARS, OCC: HOUSEHOLD, R/O: BEHIND KOTE SCHOOL, MUNDARGI, DIST: GADAG-582101. 3. MALASHREE KALAL D/O. SHIDDAPPA AGE: 23 YEARS, OCC: HOUSEHOLD, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582101. YALLAMMA KALAL W/O. MALLESHAPPA SINCE DEAD. BY LR’s. 4(A). JAYAMMA D/O. MALLESHAPPA KALAL AGE: 46 YEARS, OCC: HOMEMAKER, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582118. 4(B). SHEKAVVA D/O. MALLESHAPPA KALAL AGE: 44 YEARS, OCC: HOMEMAKER, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582118. 4(C). GEETA W/O PUNDALIK KALAL AGE: 42 YEARS, OCC: HOMEMAKER, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582118. 4(D). MAHADEVI D/O. MALLESHAPPA KALAL AGE: 40 YEARS, OCC: HOMEMAKER, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582118. 4(E). MANJUNATH S/O MALLESHAPPA KALAL AGE: 38 YEARS, OCC: BUSINESS, - 3 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582118. 4(F). PARASHURAM S/O. MALLESHAPPA KALAL AGE: 36 YEARS, OCC: BUSINESS, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582118. 4(G). ANITA D/O. MALLESHAPPA KALAL AGE: 34 YEARS, OCC: HOMEMAKER, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582118. 4(H). FAKIRESH S/O. MALLESHAPPA KALAL AGE: 32 YEARS, OCC: BUSINESS, R/O: BIDARAHALLI, TQ: MUNDARGI, DIST: GADAG-582118. …RESPONDENTS (BY SRI. LAXMAN T MANTAGANI, ADVOCATE FOR C/R1 TO R3, R4 YALLAMMA – DECEASED, R4 [B, C & H] NOTICE SERVED, R4 [A, D, E, F & G] HELD SUFFICIENT.) THIS RFA IS FILED UNDER SEC. 96 OF CPC. AGAINST THE JUDGMENT AND DECREE DTD:22.09.2018 PASSED IN O.S.NO.30/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE MUNDARGI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 4 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This regular first appeal is filed by the defendant Nos.1 to 4, challenging the judgment and preliminary decree dated 22.09.2018 passed in O.S. No.30/2015 by the learned Senior Civil Judge, Mundaragi. 2. For convenience, the parties are referred to based on their ranking before the trial Court. 3. The appellants were defendant Nos.1 to 4, respondent Nos.1 to 3 were the plaintiffs, and respondent No.4 was defendant No.5. 4. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that, plaintiff No.1 is the mother of plaintiff Nos.2 and 3. The husband of plaintiff No.1 by name Shiddappa, died on 19.08.2007, leaving behind them as class I heirs. During the life time of Shiddappa, Shiddappa was the joint owner and possessor of the suit schedule properties No.1(a) to (d) along with his brother Shanmukhappa. Defendant No.1 is the wife, defendant No.2 is the daughter and defendant Nos.3 and 4 are the sons of Shanmukhappa. Defendant No.5 is the sister of - 5 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 Shiddappa and Shanmukhappa. After the death of Shiddappa, Shanmukhappa managed the entire family’s affairs. Shanmukhappa also died before filing of the suit. His legal heirs are arrayed as defendant Nos.1 to 4. The plaintiffs demanded partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arises for the plaintiffs to file a suit for partition and separate possession. Accordingly, pray to decree the suit. 5. Defendant Nos.1 to 4 filed a written statement admitting the genealogy furnished by the plaintiffs, and it is contended that, Item No.1(a)(2) and 1(b) properties are ancestral properties and the rest of the properties are the self acquired properties of the deceased Shanmukhappa and they are the owners in possession of the said suit properties. It is contended that, Shanmukhappa was born on 16.04.1951. He started liquor business with one Sri. Vithalappa Kamble and continued the same till 08.07.2003. Shanmukhappa had a independent source of income, and out of the income derived from the liquor business, Shanmukhappa purchased the properties, i.e., Schedule 1(a)(1), 3, 1(c) and (d) properties in his name and the said properties are the self-acquired properties of Shanmukhappa. It is contended that, there was an oral partition between Shiddappa and Shanmukhappa. The plaintiffs are not entitled to a share in the suit schedule properties. There is no cause of action to file the suit. The - 6 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 cause of action shown in the plaint is false and imaginary. Hence, prays to dismiss the suit. Defendant No.5 filed her written statement consenting to the suit of the plaintiff and prayed to grant her share in the suit properties. 6. The trial Court, based on the pleadings of the parties, framed the following issues and additional issues: ISSUES 1. Whether the Plaintiffs prove that, they and defendants are the members of Hindu Undivided Family and suit schedule properties are their ancestral and joint family property and available for partition? 2. Whether the defendant No.5 proves that, she is entitled for the share as claimed in the counter claim? 3. Whether the plaintiffs are entitled for the relief as sought in the plaint? 4. What order or decree? Thereafter, on 14.06.2016, the following addl. issues are framed. 1. Whether the defendant No.3 proves that, the suit schedule 1(a)(1), 1(a)(3), 1c and 1d properties are the self acquired properties of his father? Thereafter, on 05.12.2016, the following addl. issues are framed. 1. Whether the defendant No.1 to 4 proves that, the suit schedule 1(a)(1), 1(a)(3), 1c and 1d are all the self acquired properties of the husband of defendant No.1 and father of defendant No.2 to 4? - 7 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 7. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1 and also examined 2 witnesses as PWs.2 and 3 and marked 16 documents as Exs.P-1 to P-16. The defendants have not chosen to enter the witness box and produced no documents in support of their defence. 8. The trial Court, after recording the evidence, hearing on both the sides and on the assessment of the oral and documentary evidence, answered Issue Nos.1 to 3 in the affirmative, additional issue No.1 framed on 14.06.2016 and additional issue No.1 framed on 05.12.2016, in the negative and issue No.4 as per the final order. 9. The trial Court decreed the suit of the plaintiffs in part with costs. It is declared that the plaintiffs are entitled to 1/3rd + 1/9th share in the suit Schedule (a), (b), (c) and (d) properties. It is declared that defendant No.5 is entitled for 1/9th share in the suit schedule (a), (b), (c) and (d) properties. 10. Defendant Nos.1 to 4, aggrieved by the judgment and preliminary decree dated 22.09.2018 passed in O.S. No.30/2015 by the learned Senior Civil Judge, Mundaragi, have filed this Regular first appeal. - 8 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 11. Heard the learned counsel for the defendant Nos.1 to 4 and the learned counsel for the plaintiffs. 12. Learned counsel for defendant Nos.1 to 4 submit that initially, the suit was filed on the file of the learned Senior Civil Judge, Gadag, and after the establishment of the Court of Senior Civil Judge, at Mundargi, the case was transferred to the learned Senior Civil Judge, Mundargi. He submits that, the trial Court has not provided sufficient opportunity to lead the evidence. He also submits that, Item No.1(a)(1), 3, 1(c) and 1(d) properties are the self acquired properties of the husband of defendant No.1. i.e., Shanmukhappa. He submits that, the said aspect was not properly considered by the Court below. Hence, he submit that, the appeal may be allowed and the matter be remitted to the trial Court for providing an opportunity to the defendants to lead evidence and pass appropriate judgment. 13. Per contra, learned counsel for the plaintiffs supports the impugned judgment and submits that, the suit schedule properties are the joint family properties of the plaintiffs and the defendants. The plaintiffs and the defendants are the members of the Hindu undivided joint family. Though, the Court granted sufficient number of opportunities, the defendants did not enter the witness box. - 9 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 Hence, the judgment and decree passed by the trial Court is just and proper and does not call for any interference. Hence, pray to dismiss the appeal. 14. Perused the records and considered the submission of the learned counsel for the parties. 15. The points that arise for our consideration are: (i) Whether defendant Nos.1 to 4 prove that the trial Court has not granted sufficient opportunity to the defendants to lead evidence? (ii) Whether defendant Nos.1 to 4 prove that the judgment passed by the trial Court is arbitrary and erroneous? (iii) What order or decree? 16. Point No.(i): The plaintiffs filed a suit for partition and separate possession. It is the case of the plaintiffs that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. It is contended that, the father of plaintiff Nos.2 and 3 died, leaving behind the plaintiffs as his legal heirs. Shiddappa, Shanmukhappa and defendant No.5 are the children of Malleshappa Kalal. There is no dispute with regard to the relationship of the parties to the suit. Defendant Nos.1 to 4 filed a written statement contending that, Item Nos.1(a)(1), 3, 1(c) and - 10 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 1(d) are the properties acquired by Shanmukhappa out of the income derived from liquor business and it is also contended that, there was a oral partition between Shiddappa and Shanmukhappa. Initially, a suit was filed before the learned Senior Civil Judge, Gadag, and thereafter, after establishment of the Court of Senior Civil Judge at Mundaragi, the case was transferred to the learned Senior Civil Judge, Mundargi. The learned Senior Civil Judge, Mundargi, issued notice to the parties to appear before the trial Court. Pursuant to the notice issued by the learned Senior Civil Judge, Mundargi, the parties appeared before the Court. Plaintiff No.1 was examined as PW.1 and she reiterated the plaint averments in her examination-in-chief and to prove the case of the plaintiffs, they have produced the documents marked as Exs.P-1 to P-16 and also examined two witnesses as PWs.2 and 3. Learned counsel for the defendants has cross- examined PWs.1 to 3. The plaintiffs have closed their evidence and the matter was listed for defendant’s evidence on 18.08.2018. At the request of the learned counsel for the defendants, the matter was adjourned to 25.08.2018 and the defendants prayed for an adjournment to 01.09.2018. The defendants were absent and their counsel was present, and again sought for time. Hence, the trial Court has taken the evidence of the defendants as NIL and posted the matter for arguments, and the matter was heard on 15.09.2018, and posted the matter for judgment on 22.09.2018. - 11 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 17. Perusal of the order sheet passed in O.S. No.30/2015, it discloses that, sufficient opportunity was not provided by the trial Court to the defendants to lead evidence. Hence, on this ground alone, the impugned judgment is liable to be set aside. The suit involves the right of immovable properties. The parties have to be given sufficient opportunity to put forth their case. Admittedly, in the instant case, the trial Court has not given sufficient opportunity to the defendants to lead evidence. Hence, the impugned judgment is liable to be set aside. In view of the above discussion, we answer Point No.(i) in the affirmative. 18. Point No.(ii): Though, the defendants have taken a specific contention in the written statement that, Shanmukhappa purchased certain items of the suit schedule properties out of the income derived from the liquor business in the name of defendant No.2 and further, the defendants have also taken a defence that, there was a prior partition between Shiddappa and Shanmukhappa. The said aspect was not properly considered by the trial Court, as observed above in Point No.(i), and no sufficient opportunity was provided to the defendants to put forth their defence. Hence, the matter requires re-consideration by the trial Court. Therefore, the - 12 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 judgment and preliminary decree passed by the trial Court is arbitrary and erroneous. 19. Hence, in view of the above discussion, we answer Point No.(ii) in the affirmative. 20. Point No.(iii): Accordingly, we proceed to pass the following: ORDER The appeal is allowed subject to payment of cost of Rs.50,000/- payable by defendant Nos.1 to 4 together to the plaintiffs on the date of appearance of the parties before the trial Court, failing which, defendant Nos.1 to 4 are not entitled to the benefit of this judgment. The judgment and preliminary decree dated 22.09.2018 passed in O.S. No.30/2015 by the learned Senior Civil Judge, Mundaragi, is set aside. The suit is restored to its original file. The trial Court is directed to provide an opportunity to the defendants to lead evidence and after hearing the learned counsel for the parties, pass appropriate judgment in accordance with law. This Court has made any adjudication on the merits of the matter. All the contentions of the parties are kept open. The parties are directed to appear before the trial Court on 10.02.2025. - 13 - NC: 2025:KHC-D:141-DB RFA No. 100481 of 2018 The Office is directed to return the trial Court records to the trial Court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv ct: vh