- 1 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 780 OF 2023 (PAR/POS) BETWEEN: MR. PRAKASHA, S/O LATE NAJAPPA, R/AT BEEJAGANAHALLI VILLAGE, KASABA HOBLI, HUNSUR TALUK - 571 105 …APPELLANT (BY SRI. MOHANA CHANDRA P., ADVOCATE) AND: 1. SRI NANJAPPA SINCE DEAD BY LRS. SNT. KEMPADEVAMMA SINCE DEAD BY LRS. SMT. PARVATHAMMA, D/O NANJAPPA, W/O MALLIKARJUNA S.M. AGED ABOUT 56 YEARS, 2. MR.CHANDRAPPA, AGED ABOUT 64 YEARS, S/O NANJAPPA, RESPONDENTS NO.1 AND 2 ARE R/AT BEEJAGANAHALLI VILLAGE, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 KASABA HOBLI. HUNSUR TALUK-571105 3. SMT. SHIVAMMA, AGED ABOUT 64 YEARS, W/O NINGARAJAPPA, R/AT BHEEMANAHALLI VILLAGE, KASABA HOBLI, H.D. KOTE TALUK - 571 114 4. SMT. GOWRAMMA, D/O NANJAPPA, W/O MAHADEVAPPA, AGED ABOUT 62 YEARS, R/AT NADAPPANAHALLI VILLAGE, ANASOGE POST, K.R. NAGARA TALUK - 571 617 5. SMT. MANJULA, D/O NANJAPPA, W/O KENDAGANNAPPA, AGED ABOUT 58 YEARS, R/AT BANNIKUPPE VILLAGE, KASABA HOBLI, HUNSUR TALUK-571105 6. SMT. NAGAMMA, W/O LATE MARISWAMY, AGED ABOUT 87 YEARS, R/AT BEEJAGANAHALLI VILLAGE, KASABA HOBLI, HUNSUR TALUK-571005 …RESPONDENTS (BY SRI. PUNITH C., ADVOCATE FOR R1, R3 TO R5 (ABSENT) R2 IS SERVED AND UNREPRESENTED - 3 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 VIDE ORDER DATED 12.06.2024, NOTICE TO R6 IS DISPENSED WITH) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.02.2023 PASSED IN RA NO.14/2022 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, HUNSUR. DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 18.06.2022 PASSED IN OS NO.251/2014 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, HUNSRU. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. Mohan Chandra P. learned counsel for the appellant. Respondents are served and unrepresented. 2. Defendant No.4 is the appellant challenging the decreeing of the suit in O.S.No.251/2014 which is filed for partition and separate possession in respect of the following property (hereinafter referred to as 'suit properties') : - 4 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 SCHEDULE AS PER PLAINT 1. The Agricultural land bearing Sy.No.37/1 measuring 5- 25 Acres situated at Beejaganahalli Village. Kasaba Hobli, Hunsur Taluk, Mysuru District which is bounded by: East : Lands of Basavarajappa, West :Lands of Shivanna, North :Lands of Mallikarjuna, South:Lands of Channabasavaraju. 2. The Agricultural land bearing Sy.No.206 measuring 5- 23 Acres situated at Udduru Village, Kasaba Hobli. Hunsur Taluk, Mysuru District which is bounded by: East : Property of Item No.3. West: Lands of Kalaiah, North: Lands of Sannaiah. South:Lands of Mallikarjuna. 3. The Agriculturai land bearing Sy.No.25/69 measuring 4-00 Acres, situated at Udduru Village, Kasaba Hobli. Hunsur Taluk, Mysuru District which is bounded by: East : Road. West : Lands of Item No.2. North : Lands of Sannaiah, South: Lands of Mallikarjuna. - 5 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 4. One Vacant site along with one single baren licence No.TBGR..... property No.968, measuring 13 X 13 Beejaganahalli feet situated at junger No.112, belongs to Gram Panchayath. Beejaganahalli Village, Kasaba Hobli. Hunsur Taluk, Mysuru District which is bounded by: East : Lands of Mahadevappa, West : Road, North: House of Guruswamy. South: Vacant site of Shivanna. 5. One Vacant site No.14, property No. 13 measuring East-West 39 feet and North-South 40 feet along with Kalnarsheet house, belongs Beejaganahalli Gram Panchayath. Beejaganahalli Village, Kasaba Hobli, Hunsur Taluk, Mysuru District which is bounded by; East : House of Subbannachar, West : House of Veerabhadrachar. North : Road, South: House of Sannasomachar. This property standing in the name of 4th defendant. 6. The Agricultural land bearing Sy. No.275 measuring 1 Acres 35 guntas situated at Udduru Kaval Village, Kasaba Hobli. Hunsur Taluk, Mysuru District which is bounded by; - 6 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 East : Lands of Shekar, West : Lands of Mahadevappa. North: Lands of Narayanappa, South:Lands of Nagarajappa. This property standing in the name of 3rd defendant. 7. 13 X 13 feet single baren TBGR No.3/305/035 TB.No.0053/305/034 property 1A measuring East to West 50 feet, North to South 40 feet belongs to Beejaganahalli Gram Panchayath, Beejaganahalli Village, Kasaba Hobli, Hunsur Taluk, Mysuru District which is bounded by; East : Udduru Road. West : Vacant Site of Ramarao, North: Vacant Site of Nanjunda, South: Road. This property standing in the name of 2nd defendant. 8. Property No.968, Property No.4 Kalnar Sheet House measuring total East - West 30X40 feet. North - South 40X40 feet situatedat junger No.112, belongs to Beejaganahalli Gram Panchayath, Beejaganahalli Village, Kasaba Hobli, Hunsur Taluk, Mysuru District which is bounded by: East : Lands of Mahadevappa, West: Barrwen & Hallar Floor of Nanjappa, - 7 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 North: House of Shivanna S/o Devappa. South: House of Guruswamy. This property standing in the name of 4th defendant. 3. Admittedly fourth defendant was placed ex parte before the Trial Court and suit came to be decreed ex parte as against fourth defendant. Other defendants contested the matter. 4. Fourth defendant alone filed an appeal before the First Appellate Court in R.A.No.14/2022 only in respect of suit item Nos.5 and 8 on the ground that they are the self acquired properties and those properties were not included at the inception of the suit by the plaintiff and taking advantage of fourth defendant has placed ex parte, those properties were also included into the plaint schedule by way of an amendment resulting in miscarriage of justice. - 8 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 5. Learned Judge in the First Appellate Court noted that there was due service and fourth defendant failed to contest the matter and did not permit the written statement to be taken on record and dismissed the appeal of the fourth defendant. 6. Pertinently, there was no application filed by the fourth defendant before the First Appellate Court to show that item Nos.5 and 8 of the suit properties were the absolute and independent properties of the fourth defendant. Taking note of these aspects of the matter, the appeal of the fourth defendant came to be rejected. 7. Being aggrieved by the same fourth defendant now preferred the present second appeal on the following grounds and substantial questions of law : GROUNDS The impugned judgment and decree dated 22-02-2023 passed by the court of Prl. Senior Civil Judge and JMFC, Hunsur dismissing the appeal in R.A No.14/202 and thereby confirmed the judgement and decree dated 18- - 9 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 06-2022 passed by the court of Prl. Civil Judge and JMFC, Hunsur in O.S. No.251/2014 is perverse, illegal, arbitrary. opposed to the facts of the case and evidence adduced by the parties. The court of Prl. Civil Judge and JMFC, Hunsur ought to have noted that except bald allegations of ancestral and joint family property made in the plaint, there is no specific pleadings in the plaint regarding devolution of each item of suit property. No documentary evidence is produced to show that suit schedule property are ancestral and joint family property. Similarly there is no whisper in the plaint who was prepositus of the family of the plaintiff and defendants to show that the suit schedule property are the ancestral and joint family property. Such being the case, the trial court ought to have dismissed the suit of the plaintiff for want of cause of action. The court of Prl. Civil Judge and JMFC, Hunsur allowed I.A. NO.3 under Order 6 Rule 17 C.P.C. on 18-6-2018 and thereby added item NO.5 to 8 of the suit Schedule property. But the plaintiff has not filed additional valuation slip of each of item of the suit Schedule property to show that the trial court has got pecuniary jurisdiction to try the suit. The valuation of the suit Schedule property ie.. share of the plaintiff is more than Rs.5 lakh and it oust the jurisdiction of the trial court. Therefore the judgement passed by the trial court is without jurisdiction and the same is null and void. - 10 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 The court of Prl. Civil Judge and JMFC, Hunsur failed to appreciate the oral and documentary evidence in right perspective. It has resulted in erroneous judgement. The reason assigned by the lower appellate court that the appellant has not assigned sufficient cause for his non appearance before the trial court for setting aside the decree and contest the case. Said reasoning of the lower appellate court is not correct because the lower appellate court ought to have considered the sufficient cause liberally to meet the ends of justice. The opportunity should be given to the appellant to prove his defence. Non consideration of these aspect by the lower appellate court has caused serious prejudice to the appellant to put forward his defence and it has resulted in gross miscarriage of justice The further reason assigned by the lower appellate court that the appellant has not filed written statement along with the appeal to remand the case for trial and only to drag on the matter he has taken such contention. Said reasoning of the lower appellate court is not correct because the appellant in his memorandum of appeal sought permission to file written statement and contest the case. Such being the case, the lower appellate court ought to have set aside the judgement passed by the trial court and remanded the case for trial court for fresh disposal in accordance with law. Merely the fact that the appellant has not filed written statement along with - 11 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 appeal cannot be ground to deny the appellant to defend the case.. The principle of natural justice plays a pivotal role in the administration of justice. The further reason assigned by the lower appellate court that the appellant has not produced document to show that item No.5 of the suit schedule property is his self acquired property. Said reasoning of the lower appellate court is not correct because the perusal of document produced by the plaintiff itself goes to show that item No.5 of the suit property stands in the name of the appellant. It is not case of the plaintiff that Item NO. 5 of the suit property is acquired by the appellant out of the income derived from ancestral and joint family property or in the alternative he has thrown his self acquired property to joint family property and treated his property as joint family property.. Such being the case, the lower appellate court ought to have given opportunity to the appellant to prove case remanding the matter to the trial court. by Both the courts below ought to have noted that the plaintiff has not produced single piece of document to show that the suit Schedule property are ancestral and joint family property. Such being the case, she has no right to seek partition in the property during the life of his father. There is no right to sue arose to the plaintiff to file suit for partition against the defendants. The trial court ought to have rejected the plaint at the threshold itself for non-disclosure of cause of action instead of - 12 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 decreeing the suit of the plaintiff. It has resulted in gross miscarriage of justice. The court of Prl. Senior Civil Judge and JMFC, Hunsur blindly and mechanically passed the impugned judgement and thereby confirmed the judgement of trial court without appreciation of facts and law in the above case. The first appellate court is the last fact finding court ought to have appreciated the oral and documentary evidence in right perspective. Non consideration of material aspect by the appellate court has resulted in gross miscarriage of justice. The trial court and the lower appellate court have failed to appreciate the oral and documentary evidence and in right perspective. It has resulted in gross miscarriage of justice. The appellant craves the leave of this Hon'ble court to urge such other grounds at the time of hearing the appeal. SUBSTANTIAL QUESTIONS OF LAW: 1) Whether the trial court was justified in answering all the points for consideration in the affirmative without there being any documentary evidence regarding ancestral and joint family property? - 13 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 2) Whether the trial court and lower appellate court were justified in appreciating both oral and documentary evidence? 3) Whether the judgement and decree of both the trial court and appellate court are perverse and illegal, opposed to law and evidence and the same is liable to be interfered with by this Hon'ble Court? 4) Whether the trial court was justified in decreeing the suit without insisting for valuation slip in respect of item no.5 to 8 of the suit property added during the pendency of the case when the value of the share of the plaintiff is more than Rs.5 lakh?. 5) Whether the lower appellate court was justified in answering point NO.1 in the negative without giving opportunity to the appellant to prove his defence? 6) Whether the lower appellate court was justified in rejecting the sufficient cause for setting aside ex parte judgement and decree of the trial court? 8. Sri. Mohan Chandra P., learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that fourth defendant remained ex parte on the ground that only four - 14 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 properties were included in which she would also get share in the suit properties and did not contest the suit. 9. However taking advantage of the fourth defendant being placed ex parte, by way of amendment, four more properties were included in the plaint schedule of which item Nos.5 and 8 are the absolute, independent and self acquired properties of fourth defendant. Therefore the fourth defendant was surprised to see that decree has been granted in respect of those items also and immediately took steps to file appeal before the First Appellate Court. 10. He would further content that before the First Appellate Court, filed in application seeking leave to file the written statement and sought for remitting the matter to the Trial Court for fresh adjudication in respect of item Nos.5 and 8 of the suit properties which has not been considered by the First Appellate Court and rejecting the - 15 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 appeal filed by the fourth defendant has resulted in grave miscarriage of justice and sought for admitting the appeal. 11. Respondents are duly served with the notice of the appeal and remained absent. 12. In the light of the arguments put forward on behalf of the appellant, this Court perused the material on record meticulously. 13. On such perusal of material of record, admittedly the suit summons were duly served on the fourth defendant but he remained ex parte. 14. Once she has remained ex parte, there is an amendment to the suit and item Nos.5 and 8 were also included in the suit properties. Fourth defendant is now aggrieved only with regard to the item Nos.5 and 8 of the suit properties, inasmuch according to her, those two properties are the self acquired properties of the fourth defendant. - 16 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 15. In the appeal, there is no mention as to how he acquired item Nos.5 and 8 and what are the documents that would at least prima facie depicts that item Nos.5 and 8 are the self acquired properties of the appellants. Before this Court also no such document is placed on record. 16. Admittedly before the First Appellate Court there was no application filed under Order XLI Rule 27 of the Code of Civil Procedure, to establish that the fourth defendant is the absolute owner of item Nos.5 and 8. 17. Taking note of these aspects of the matter, the learned Judge rejecting the appeal is just and proper. 18. A party cannot be permitted to take advantage of her own wrong is the settled principles of law. 19. In view of the same, this Court does not find any good grounds to admit the appeal further for considering the substantial questions of law raised in the appeal. In the final decree proceedings, the appellant may - 17 - HC-KAR NC: 2025:KHC:35943 RSA No. 780 of 2023 seek equitable partition with regard to item Nos.5 and 8 of the suit properties. 20. With that observation, following Order: ORDER (i) Appeal is meritless and hereby dismissed. (ii) In view of dismissal of the appeal, pending IAs are consigned to records. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 59 CT: SG