- 1 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 01ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100340 OF 2018 (PAR/POS-) BETWEEN: 1. SMT. VIMALA W/O VEERAPPA KADADAVAR AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR PRABHUDEV TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 2. SMT.SHANKREWWA W/O VEERAPPA KADADAVAR AGE: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR PRABHUDEV TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 3. SHRI. SHIVAKUMAR S/O VEERAPPA KADADAVAR, AGE: 24 YEARS, OCC: STUDENT, R/O: NEAR PRABHUDEV TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 4. KUMARI SUSHMA D/O VEERAPPA KADADAVAR, AGE: 17 YEARS, OCC: STUDENT, SINCE MINOR REP BY HER NEXT FRIEND MOTHER RESPONDENT NO.2- SMT. SHANKREWWA W/O VEERAPPA KADADAVAR. 5. SHRI. JAYAPRAKASH S/O SATTEPPA KADADAVAR, AGE: 37 YEARS, OCC: BUSINESS, R/O: NEAR PRABHUDEV TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 6. SHRI. BASAVARAJ @ BASAPPA S/O SHRIMANTH KADADAVAR, AGE: 66 YEARS, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.16 12:15:29 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 OCC: AGRICULTURE, R/O: CONGESS ROAD, 3RD GATE, RAM MANDIR, BELAGAVI-590006. 7. SHRI. SADASHIV S/O SHRIMANTH KADADAVAR AGE: 56 YEARS, OCC: PVT. SERVICE, R/O: NEAR PRABHUDEV TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 8. SMT. PARWATI W/O RAMESH KADADAVAR AGE: 56 YEARS,OCC: PVT. SERVICE, R/O: NEAR PRABHU TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 9. SHRI. VISHWANATH S/O RAMESH KADADAVAR AGE: 26 YEARS, OCC: AGRICULTURE, R/O: NEAR PRABHU TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 10. SHRI. UMESH S/O SHRIMANTH KADADAVAR AGE: 48 YEARS, OCC: AGRICULTURE, R/O: NEAR PRABHUDEV CIRCLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. …APPELLANTS (BY SRI. G.B NAIK & SMT P.G NAIK, ADVS) AND: 1. SMT. BASAWWA W/O HANUMANTH GADDI AGE: 54 YEARS, OCC: AGRICULTURE, R/O: NEAR PRABHUDEV TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 2. SMT.SAVITA W/O SUNIL MANTUR AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR JAI HANUMAN GARAGE, GHATAPRABHA-591306, TQ: GOKAK, DIST: BELAGAVI. 3. SMT. BORAWWA W/O SATTEPPA KADADAVAR AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR PRABHUDEV TEMPLE, - 3 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 4. SMT. VEENA W/O APPAYYA GHODAGERI AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: GUDAS-592306, TQ: HUKKERI, NOW AT H.NO.39, BLOCK NO.4, KSRP QUARTERS, NEAR RTO OFFICE, NAGANAGAR, HUBBALLI. 5. SHRI. PRAVEEN S/O SATTEPPA KADADAVAR AGE: 33 YEARS, OCC: AGRICULTURE, R/O: MALLAPUR P.G.-591101, TQ: GOKAK, DIST: BELAGAVI. 6. SMT. LALITA W/O UMESH KADADAVAR AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR PRABHUDEV TEMPLE, MALLAPUR P. G-591101, TQ: GOKAK, DIST: BELAGAVI. 7. SHRI. PRAKASH S/O DUNDAPPA GUDASI AGE: 44 YEARS, OCC: AGRICULTURE, R/O: BELLAD BAGEWADI-591305, TQ: HUKKERI, DIST: BELAGAVI. 8. SHRI. SHRISHAIL S/O DUNDAPPA GUDASI AGE: 39 YEARS, OCC: AGRICULTURE, R/O: NEAR JADISIDDESHWAR TEMPLE, BELLAD BAGEWADI-591305, TQ: HUKKERI, DIST: BELAGAVI. …RESPONDENTS (BY SRI. PRUTHVIRAJ P.HITTALAMANI, ADV FOR R1 NOTICE TO R2 TO R7 ARE SERVED) THIS RFA IS FILED U/SEC. 96 READ WITH ORDER 41 RULE 1 & 2 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 28.05.2018 PASSED IN O.S NO.130/2017 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, GOKAK, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants challenging the judgment and decree dated 28.05.2018 passed in O.S.No.130/2017 by the Principal Senior Civil Judge, Gokak. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendants No.1, 2, 4, 5, 7, 10, 14, 15, 16 and 17. Respondent No.1 was the plaintiff and other respondents were the defendants. 3. Brief facts, leading rise to the filing of this regular first appeal, are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Srimanth was the propositus and his wife Gangawwa died leaving behind Veerappa, Satteppa, defendant No.10, Doddawwa, Shantawwa, defendant - 5 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 No.14, plaintiff, Ramesh and defendant No.17. Among them, Veerappa, Satteppa, Doddawwa, Shantawwa and Ramesh are dead. Defendants No.1 and 2 are first and second wives of deceased Veerappa. Defendants No.3 to 5 are their children. Defendant No.6 is the wife of deceased Satteppa and defendants No.7 to 9 are their children. Defendants No.11 to 13 are children of deceased daughter Doddawwa and defendant No.15 is the wife and defendant No.16 is the son of deceased Ramesh. Shantawwa was a spinster and passed away. The propositus died on 11.03.1982. The plaintiff and the defendants constitute a Hindu joint family. It is contended that the suit schedule properties are the ancestral joint family properties of the plaintiff and the defendants. The plaintiff requested the defendants to effect partition but the defendants refused to effect the partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, he prayed - 6 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 to decree the suit and grant 1/56th share in the suit schedule properties by metes and bounds. 4. Summons were issued to the defendants. Defendants No.1, 2, 4, 5, 7, 10 and 14 to 17 appeared through their counsel but did not file a written statement. Remaining defendants remained unrepresented and they were placed exparte. 5. The plaintiff, to substantiate his case, examined himself as PW-1 and marked 19 documents as per Exs.P1 to P-19. 6. The trial Court, after recording the evidence, framed the following points for consideration: 1) Whether plaintiff is entitled for the relief as prayed against defendants? 2) What order or decree? 7. The trial Court, on assessment of the verbal and documentary evidence, decreed the suit of the plaintiff and - 7 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 declared that the plaintiff is entitled to a 1/56th share in the suit properties by metes and bounds. 8. Defendants No.1, 2, 4, 5, 7, 10, 14, 15, 16 and 17, aggrieved by the judgment and preliminary decree dated 28.05.2018 passed in O.S.No.130/2017, filed this Regular First Appeal. 9. Heard the learned counsel for the defendants and the learned counsel for the plaintiff. 10. Learned counsel for defendants/appellants submits that the defendants appeared through their counsel before the trial Court. She submits that negotiation talks were going on between the parties. Hence, the defendants could not file the written statement and the matter was adjourned. The trial Court has taken the written statement as not filed and posted the matter for plaintiff’s evidence on 05.03.2018 wherein the plaintiff was examined as PW-1 and got marked 19 documents as Exs.P-1 to P-19. The trial Court, without posting the - 8 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 matter for cross-examination of PW-1, posted the matter for judgment on 08.03.2018. She submits that the trial Court has not provided sufficient opportunity for the defendants to cross-examine PW-1 and also to address the arguments on merits. Hence, she submits that the appeal may be allowed and set aside the impugned judgment and preliminary decree and matter may be remanded the matter to the trial Court for fresh consideration. 11. Per contra, learned counsel for the plaintiff submits that the defendants appeared through their counsel but did not file a written statement, despite the trial Court granted sufficient opportunity. The defendants were negligent in conducting the case. He submits that the trial Court was justified in passing the impugned judgment. Hence, he prays to dismiss the appeal. 12. Perused the records and considered the submissions of the learned counsel for the parties. - 9 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 13. The points that would arise for consideration are: 1) Whether the defendants/appellants prove that the trial Court has not provided sufficient opportunity to the defendants/appellants to file a written statement, cross-examining PW-1 and addressing arguments on merits? 2) What order? POINT NO.1: 14. The plaintiff filed a suit against the defendants for partition and separate possession contending that the plaintiff and the defendants are members of a Hindu Undivided Family and the suit schedule properties are the ancestral joint family properties of the plaintiff and defendants. There was no partition effected between the plaintiff and defendants. To establish that the suit schedule properties are the ancestral joint family properties of the parties to the suit, the plaintiff produced documents at Exs.P-1 to P-19. - 10 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 15. I have perused the order sheet of the trial Court wherein the plaintiff was examined as PW-1 on 05.03.2018 and the trial Court has not permitted the defendants to cross-examine the plaintiff. In view of the proposition of law laid down by this Court in the case of Basalingappa Chinnappa Goudar and others vs. Shantavva and others1 that if written statement is not filed by the defendant, the defendant cannot adduce evidence but however, the defendant can cross-examine the plaintiff. The said aspect was not properly considered by the trial Court and further on the same day itself without hearing the learned counsel for parties, posted the matter for pronouncement of judgment on 08.03.2018 and again it was adjourned to 22.03.2018 and consequently the suit was decreed vide judgment dated 28.05.2018. 16. From the perusal of the records it is clear that the trial Court has committed an error in not providing an opportunity to the defendants to cross-examine PW-1 and 1 ILR 2002 KAR 260 - 11 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 also not permitting the defendants to address the arguments. Thus, the judgment and preliminary decree passed by the trial Court is in violation of principles of natural justice. Thus, the matter requires reconsideration by the trial Court. 17. In view of the above discussion, I answer point No.1 in affirmative. REG. POINT NO.2: 18. As per the final order. ORDER (i) The appeal is allowed. (ii) The judgment and preliminary decree dated 28.05.2018 passed in O.S.No.130/2017 by the Prl. Senior Civil Judge, Gokak is set aside. (iii) Suit in O.S.No.130/2017 is restored to its original file. (iv) Liberty is reserved to the defendants to file a written statement within a period of 30 days - 12 - HC-KAR NC: 2025:KHC-D:9527 RFA No. 100340 of 2018 from the date of appearance, failing which, the defendants are not entitled for the benefit of this order. (v) The trial Court is directed to provide the opportunity to the parties to adduce evidence. (vi) Parties are directed to appear before the trial Court on 14.10.2025 without awaiting any further notice. (vii) Office is directed to transmit the trial Court records forthwith. (viii) All the contentions of the parties are kept open. Sd/- (ASHOK S. KINAGI) JUDGE NAA CT: BSB List No.: 1 Sl No.: 1