- 1 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO.100149 OF 2021 (PAR/POS) BETWEEN: 1. MALLAPPA S/O. ALLAPPA ARABHAVI AGE: 35 YEARS, OCC: AGRICULTURE, R/O: MADABHAVI, NOW AT KALLIGUDDI 591227, TQ: GOKAK, DIST: BELAGAVI. 2. ALLAPPA S/O. BASAPPA ARABHAVI AGE: 60 YEARS, OCC: AGRICULTURE, R/O: MADABHAVI, NOW AT KALLIGUDDI 591227, TQ: GOKAK, DIST: BELAGAVI. 3. NAGAPPA S/O. ALLAPPA ARABHAVI AGE: 32 YEARS, OCC: AGRICULTURE, R/O: MADABHAVI, NOW AT KALLIGUDDI 591227, TQ: GOKAK, DIST: BELAGAVI. …APPELLANTS (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: 1. AMAR S/O. RAMAPPA MAVINGIDAD AGE: 31 YEARS, OCC: PRIVATE SERVICE AND AGRICULTURE, R/O: KALLIGUDDI, NOW AT GOKAK 591307, TQ: GOKAK, DIST: BELAGAVI. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 2. RAMAPPA S/O. BHIMAPPA MAVINGIDAD AGE: 58 YEARS, OCC: SERVICE, R/O: KALLIGUDDI, NOW AT GOKAK 591307, TQ: GOKAK, DIST: BELAGAVI. 3. SMT. SUNANDA W/O. RAMAPPA MAVINGIDAD AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O: KALLIGUDDI, NOW AT GOKAK 591307, TQ: GOKAK, DIST: BELAGAVI. 4. AMOGH S/O. RAMAPPA MAVINGIDAD AGE: 33 YEARS, OCC: PRIVATE SERVICE AND AGRICULTURE, R/O: KALLIGUDDI, NOW AT GOKAK 591307, TQ: GOKAK, DIST: BELAGAVI. …RESPONDENTS (BY SRI. MAHESH WODEYAR, ADVOCATE) THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.09.2020 PASSED IN O.S.NO.221/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GOKAK, DECREEING THE SUIT FILED FOR PARTITION AND DECLARATION. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA - 3 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) This appeal by defendant 4 to 6 is challenging the judgment and decree dated 04th September 2020 passed in Original Suit No.221 of 2016 by the Second Additional Senior Civil Judge and JMFC, Gokak. 2. For the sake of convenience, the parties herein are referred to as per their status and rank before the trial Court. 3. Plaintiff who is respondent No.1 herein, filed a suit for declaration and partition of his alleged one-fourth share in the suit schedule property interalia contending that the suit property measuring 3 acre 13 gunta including one gunta of phot kharab land in Survey No.100/2/2 and 100/2/5 of Mannikeri, Gokak Taluk. It is contended that the plaintiff and defendant No.3 are the children of defendants 1 and 2. The suit property was granted to father of defendant No.1 viz. Bhimappa Yallappa Mavingidad in the year 1969 and is the ancestral joint family property of plaintiff and defendants 1 to 3. It is further contended that after the death of said Bhimappa, plaintiff and defendants 1 to 3 are in joint possession of the suit property. There is no partition in respect - 4 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 of the same. The suit property is an irrigated land and the plaintiff and defendants 1 to 3 are raising sugarcane maize, etc. and are jointly paying the land revenue, and other tax. It is further contended that defendant No.1 is not the exclusive owner of the suit property and he has no saleable right, title and interest in the suit property. The defendant No.1, behind the back of plaintiff, has executed sale deed dated 21st March, 2004 in favour of defendants 4 and 5. It is contended that the same is bogus and not binding on the plaintiff. It is also contended that the plaintiff and defendants 2 and 3 are not parties to the alleged sale deed. Further, it is contended that the possession of the suit property was not delivered to the defendants 4 and 5 under the alleged sale deed. When the defendant 4 to 6 tried to interfere with the possession of the plaintiff over the suit property, the plaintiff obtained records and found that defendant No.1 had created a sale deed in favour of defendants 4 and 5 in respect of suit property. The plaintiff approached defendant No.1 on 11th June, 2016, requesting to partition but of no avail. Therefore, plaintiff filed the suit. - 5 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 4. In response to summons, defendants 1 to 3 appeared through their Counsel but have not filed the written statement. Defendants 4 to 6 remained absent and are placed exparte. 5. To substantiate the case, plaintiff examined himself as PW1 and got marked nine documents as Exhibits P1 to P9. Plaintiff has examined two more witnesses as PW2 and PW3. Defendants 1 to 3 neither filed written statement nor cross- examined PWs 1 to 3. Having heard the counsel for the parties, the trial Court framed points for consideration and answered the same in the affirmative and accordingly, decreed the suit of the plaintiff holding that the plaintiff is entitled to 1/4th share and defendants 1 to 3 are entitled to 1/4th share each in the suit property. The trial court further held that the sale deed dated 21st March, 2004 is valid to the extent of 1/4th share of defendant No.1 in the suit property. Being aggrieved by the impugned judgment and decree dated 04th September 2020, defendants 4 to 6 are in appeal before this court. 6. Sri Shriharsh A Neelopant, learned Counsel appearing for the appellant-defendants 4 to 6, submits that the judgment and decree passed by the court below is illegal perverse, - 6 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 capricious and also contrary to the well established principles of law laid down by the Hon’ble Apex Court, as also of this court. It is submitted that the defendant No.1 vendor of the appellants, after service of summons on defendants 4 to 6, assured that he will see that the plaintiff will withdraw the suit and on his assurance, the defendants 4 to 6 did not appear and contest the suit. However, the trial Court has given a finding that the suit property has fallen to the share of defendant No.1. It is the submission of the learned Counsel that if that would be the case, the present appellants who are the purchasers from defendant No.1 will step into the shoes of defendant No.1. Hence the trial Court ought to have held that the appellants, being the purchasers from defendant No.1 are bona fide purchasers and hold valid title from defendant No.1. It is further submitted that a perusal of the suit filed by the plaintiff seeking partition during the lifetime of defendant No.1 clearly, goes to show that the suit is a collusive suit to defraud the appellants, when admittedly, as per the case of the plaintiff himself, the suit property fallen to the share of defendant No.1 after grant. The trial Court has decreed the suit only on the pretext that defendants 4 to 6-appellants herein, have not - 7 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 contested the suit, which is not permissible under law. It is also contended that if the defendants 4 to 6 are given chance, they would contest the case on merits and the appellants will establish the fact that they are bona fide purchasers of the suit property. Hence it is prayed for allowing the appeal by setting aside the impugned judgment and decree. 7. On the other hand, Sri Mahesh Wodeyar, learned Counsel, appearing for the respondents supports the judgment and decree passed by the trial Court. He submits that the though notice was issued to defendants 4 to 6, neither they appeared nor were represented by the Counsel and hence the trial Court has placed them ex-parte. He submits that the trial Court has properly appreciated the evidence and record and decreed the suit in favour of the plaintiff. There are no grounds to interfere by the Court. On all these grounds it is sought to of the appeal. 8. Having heard the learned Counsel for the parties and on perusal of materials on record, the following points would arise for our consideration: - 8 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 1. Whether the appellants have made out ground to remand the case to the trial court to provide an opportunity to file written statement and to cross- examine PWs1 to 3? 2. What order? 9. Our finding to the above points or as under: Point No.1: In the affirmative Point No.2: As per final order Regarding Point No.1: 10. We have examined the material placed before this Court. Plaintiff has filed suit against defendants for partition and separate possession of one-fourth share in the suit properties and also for declaration of sale deed dated 21st March 2004 executed by defendant No.1 in favour of defendants 4 and five, who are appellants 1 and 2 herein, is not binding on his share. 11. Defendants 1 to 3 appeared through their Counsel, but have not filed the written statement. Summons duly served on defendants 4 and 5. Despite taking out paper publication on - 9 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 defendants 4 and 6, they have not appeared and hence were placed ex-parte. It is submitted by the learned Counsel for the appellants that after service of summons, defendant No.1-the vendor of the appellants, assured the appellants that he will see that plaintiff will withdraw the suit and on his assurance, the appellants did not appear and contest the suit. Further, the learned Counsel would submit that the appellants who were defendants 4 to 6, had no opportunity to contest the suit on merits, and if this Court provides one more opportunity to the appellants to contest the case, they would establish the fact that they are bona fide purchasers of suit properties. 12. It is contended in the plaint that the alleged sale deed dated 21st March 2004 is bogus and without consideration. Defendants 4 and 5 did not come into possession of suit properties. However, the RTC extract reveals that as on date of filing the suit i.e. for the year 2015-16, the land bearing survey No.100/2/2 of Mannikeri, Gokak Taluk stand in the name of Mallappa Allappa Aarabhavi who is defendant No.4; and the land in survey No.100/2/5 stand in the name of Allappa Basappa Arabhavi who is the defendant No.5. The trial Court has not discussed anything in this regard, - 10 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 however, has held that the oral and documentary evidence of plaintiff remain unchallenged by defendants 1 to 3, and defendants 4 to 6 remained absent and only on this ground, the trial Court has decreed the suit. 13. The Hon’ble Apex Court has consistently held that an Appellate Court exercising its jurisdiction under Section 96 of the Code of Civil Procedure should not remand a matter to the trial court in a casual or mechanical manner. A remand order should only be made in exceptional and compelling circumstances that warrant such action. In the landmark case of MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH, the Hon’ble Apex Court emphasized that an Appellate Court must assign cogent and valid reasons for remanding a case. The judgment unequivocally states that a remand order cannot be based on the mere ipse dixit of the Appellate Court without supporting reasons. Therefore, in exercise of its appellate jurisdiction, a Court must ensure that an order of remand is well-reasoned, justified and based on the factual matrix and legal principles governing the case. - 11 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 14. In the present case, the issue revolves around the appellate court’s discretion in exercising the power of remand under Order XLI Rules 23 and 23A of the Code of Civil Procedure. The defendants who are the purchasers of the suit property, have challenged the judgment of the trial court. Upon a meticulous examination of the records and the grounds urged in the appeal, it is evident that the first defendant, Ramappa, executed a registered sale deed in favor of the appellants (defendants 4 to 6) on 21st March, 2004. However, the plaintiff, who is the son of the first defendant, did not institute a suit for partition at the relevant time. Instead, he chose to file the present suit only on 30th June, 2016, raising concerns about undue delay and possible ulterior motives. Additionally, it is pertinent to note that defendants 1 to 3 have not disclosed their defence by filing a written statement before the trial Court. Defendants 4 to 6, who have now filed the present appeal, have contended that the plaintiff and defendant No.3 are software engineers. They have further asserted that the defendant No.1 executed the sale deed in 2004 for valid and valuable consideration. Consequently, defendants 4 to 6 claim that their rights over the suit property have been - 12 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 crystallized and that they are bona fide purchasers for value. They have also alleged that the defendant No.1, who was responsible for defending their interest in the suit, assured them that he would safeguard their rights but ultimately chose not to file a written statement or contest the proceedings. In light of these circumstances, defendants 4 to 6 have argued that the suit is collusive in nature, aimed solely at defrauding them of their lawfully acquired property rights. They now seek an opportunity to contest the suit by filing a written statement and defending their title over the suit schedule property. 15. After careful consideration of the arguments advanced and the material on record, we are of the view that there exists sufficient justification to remit the matter back to the trial Court. Defendants 4 to 6 have been in possession of the suit schedule property since 2004, based on a Registered Sale Deed executed for valuable consideration. The partition suit has been filed only in 2016, after a delay of nearly twelve years. Given this substantial lapse of time, it is necessary to consider whether the defendants have been denied a fair opportunity to defend their title. In our assessment, the reasons cited by defendants 4 to 6 for their failure to contest - 13 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 the suit earlier, are credible and require due consideration. If the matter is not remitted, defendants 4 to 6, who have acquired valid title under a registered sale deed, would suffer grave prejudice. Such an outcome would not only be unjust but also lead to a miscarriage of justice. 16. Furthermore, we are mindful of the fact that the plaintiff remained silent for over a decade before initiating the present suit. The delay in instituting the proceedings raises concerns about the bonafides of the plaintiff’s claim. Considering the balance of equities and the potential impact on all parties involved, we find that remitting the matter to the trial Court will not cause any undue hardship or serious prejudice to the plaintiff. On the contrary, it will serve the ends of justice by affording defendants 4 to 6 an opportunity to assert their rights through a written statement and to present their case effectively. Taking into account the totality of circumstances and the grounds urged in the memorandum of appeal, we are of the considered opinion that defendants 4 to 6 deserve one more opportunity to contest the suit. Accordingly, we deem it just and proper to set aside the impugned judgment and remand the matter for fresh adjudication. The trial Court - 14 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 shall permit defendants 4 to 6 to file their written statement and also afford them an opportunity to cross-examine PWs 1 to 3. In light of the above observations, we answer point number one in the affirmative and direct the trial Court to proceed in accordance with law. Regarding Point No.2: 17. For the afore stated reasons, we proceed to pass the following: O R D E R i) Appeal is allowed; ii) Judgment and decree dated 04th September 2020 passed in Original Suit No.221 of 2016 by the Court of Second additional Senior Civil Judge and JMFC, Gokak, is set aside; iii) Matter is remitted back to the trial Court with a direction to provide an opportunity to the appellants-Defendants 4 to 6 to file their written statement and also to cross-examine PWs1 to 3 - 15 - NC: 2025:KHC-D:4303-DB RFA No. 100149 of 2021 and thereafter, proceed with the case in accordance with law; iv) Trial court is directed to dispose of the case as expeditiously as possible, as the matter is of the year 2016; v) Registry is directed to sent a copy of this statement along with trial Court records, to the concerned court forthwith. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE lnn CT-CMU LIST NO.: 1 SL NO.: 29