- 1 - HC-KAR NC: 2026:KHC:1083-DB RFA No. 1488 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MR. JUSTICE S RACHAIAH REGULAR FIRST APPEAL NO. 1488 OF 2017 (RES) BETWEEN: 1. T J ASHOKA S/O T.R.JAGANNATHA SHETTY AGED ABOUT 56 YEARS R/O. BETTAMAKKI, NEW EXTENSION, SEEBINAKERE POST, THIRTHAHALLI – 577 432. …APPELLANT (BY SRI. RAVI H K, ADVOCATE) AND: 1. T J SHAMANNA S/O T.R.JAGANNATHA SHETTY, R/O K.T.LAYOUT, ANALEKOPPA 1ST CROSS, SAGAR, SHIVAMOGGA DISTRICT – 577 401. 2. T.J.PURUSHOTTAMMA S/O T.R.JAGANNATHA SHETTY, Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:1083-DB RFA No. 1488 of 2017 MAJOR BY AGE, R/O SHANTHINAGAR, NEAR SAHAKARA SARIGE GARAGE, SRINGERI CHIKMAGALURU – 577 139. 3. VANAJAKSHI W/O LATE RAMACHANDRA T.J. AGE MAJOR, R/O GERUKATTE, KONANDUR (P), THIRTHAHALLI, SHIVAMOGGA – 577 432. 4. NAGARATHNA W/O T.R.NAGARAJA SHETTY, AGE MAJOR, AZAD ROAD, RANGA KIRAN, THIRTHAHALLI SHIVAMOGGA – 577 432. 5. VARADA W/O MANJUNATHA SHETTY, AGE MAJOR, R/O BALEBAILU THIRTHAHALLI, SHIVAMOGGA – 577 432. 6. KAMALAMMA, DEAD BY LR’S SHEKARA B S/O BHOJA SHETTY, AGED 47 YEARS, R/AO S.N.NAGAR, 2ND CROSS, SAGAR SHIVAMOGGA DISTRICT – 577 401. - 3 - HC-KAR NC: 2026:KHC:1083-DB RFA No. 1488 of 2017 7. VIMALA W/O BHASKARA SHETTY, R/O DODDAMANEKERI, THIRTHAHALLI TOWN- 577 432. 8. LEELA W/O LATE VISHWANATHA SHETTY, R/O 3RD CROSS, RAMESHWARA CIRCLE, S.N.NAGAR, SAGAR, SHIVAMOGGA DISTRICT – 577 401. 9. LATHA RAVI SHETTY W/O RAVI SHETTY AGED 39 YEARS R/O PAI BUILDING, OPP: MARUTHI MANDIRA, JAWAHARALAL NEHRU ROAD, DANDELI, U.K. – 581 325. 10. POORNIMA B W/O S.J.VIJAYAKUMAR, R/O NRV GENERAL STORES, NEAR SMART CAR, KAGGADASAPURA MAIN ROAD, C.V.RAMAN ROAD BENGALURU - 93. 11. BHAGEERATHI S SHETTY W/O SHIVASHANKARA SHETTY, MAJOR BY AGE, R/O NEAR GRAMA PANCHAYAT, BALGADI, KOPPA, CHIKKAMAGALURU – 577 139. 12. MADHUKARA - 4 - HC-KAR NC: 2026:KHC:1083-DB RFA No. 1488 of 2017 S/O SHIVARAMA SHETTY, MAJOR BY AGE, R/O MARKET ROAD, SOPPUGUDDE, THIRTHAHALLI SHIVAMOGGA – 577 432. 13. RAVI S/O SHIVARAMA SHETTY, MAJOR BY AGE, R/O MARKET ROAD, SOPPUGUDDE, THIRTHAHALLI SHIVAMOGGA – 577 432. …RESPONDENTS (BY SRI. N K RAMESH, ADVOCATE FOR R4-10,12 & 13; SRI. P N HARISH, ADVOCATE FOR R1; SRI. SARAVANA S, ADVOCATE FOR R11; NOTICE TO R2-R13 ARE D/W, V/O DATED 06/06/2023) THIS RFA IS FILED UNDER SEC.96 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 28.06.2016 PASSED IN OS.NO.08/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., THIRTHAHALLI, AND ETC., THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE S RACHAIAH - 5 - HC-KAR NC: 2026:KHC:1083-DB RFA No. 1488 of 2017 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE D K SINGH) The present appeal is filed under Section 96 of Code of Civil Procedure, 1908, against the judgment and decree dated 28.06.2016 passed in OS.No.08/2013 by the learned Senior Civil Judge and Judicial Magistrate First Class, Thirthahalli. 2. The appellant had filed the partition suit in OS.No.05/1996 in which the final decree – FDP.No.3/1999 was passed by the learned Munsiff, Thirthahalli and the suit was decreed with cost. The respondent No.1 herein was defendant No. 2 in the suit filed by the appellant in OS.No.05/1996 who was allegedly not served with summons and as the O.S.No.05/1996 was decreed behind his back, he filed the original suit in O.S.No.08/2013 for cancelling the judgment and decree passed in O.S.No.05/1996 and in FDP.No.03/1999. 3. The learned Trial Court, after considering the pleadings, had framed the following issues for consideration. “10. On the basis aforesaid pleadings the following issues are framed: 1. Whether the plaintiff proves that the defendants colluded together and got filed O.5.5/96 and - 6 - HC-KAR NC: 2026:KHC:1083-DB RFA No. 1488 of 2017 thereafter the FDP.3/99 behind his back in order to defraud his rights ? 2. Whether the plaintiff further proves that somebody has signed in the acknowledgment without his; knowledge when the court has issued summons in the said suit? 3. Whether the suit is maintainable without seeking further reliefs? 4. Whether the defendants prove that the suit is barred by time? 5. Whether the plaintiff is entitled for the relief? 6. What order or decree?” 4. The Trial Court, after considering the evidence on the record has decreed the suit filed by the respondent and the final decree in FDP.No.03/1999 passed by the Learned Munsiff Court, Thirtahalli, in respect to the preliminary decree in OS.No.05/1996. 5. The point for determination for this Court in the present appeal is that, whether the impugned judgment and decree suffers from any illegality or it is justified in the facts and circumstances of the case. 6. The learned counsel for the appellant submits that, the respondent was served in O.S.No.05/1996 filed by him. However, the learned Trial Court after considering the oral and documentary evidence, has been of the view that, summons - 7 - HC-KAR NC: 2026:KHC:1083-DB RFA No. 1488 of 2017 issued by RPAD could not bear the signature of the respondent who is the defendant No.2. As the summons was not served and received by the respondent who was the defendant No.2 in OS.No.05/1996 filed by the appellant, the Trial Court has rightly held that the respondent No.1/defendant No.2 in OS.No.05/1996 was never served, and therefore, the learned Trial Court cancelled the final decree. 7. The appellant and the respondent Nos.1 and 2 are the real brothers, whereas the other respondents are their sisters. The partition had been sought in respect of the properties left by their father. As the respondent No.1 was not served by the summons, the judgment and decree passed in OS.No.05/1999 would not be operative against him and the learned Trial Court has only set aside the final decree. We therefore, do not find that the impugned judgment and decree suffers from any illegality or it is not based on no evidence. We therefore, dismiss the appeal. 8. However, as the matter is of the year 1999, we direct the learned Trial Court to decide the FDP.No.03/1999 - 8 - HC-KAR NC: 2026:KHC:1083-DB RFA No. 1488 of 2017 expeditiously, preferably within a period of four (04) months from the date of receipt of this order. 9. The parties are directed to appear before the Trial Court on 21.01.2026. We hereby, restore the final FDP.No.03/1999 for which respondent No.1 is seeking modification. 10. We make it clear that, we have not disturbed the preliminary decree which would be subjected to the final decree to be passed by the learned Trial Court. 11. All contentions of the parties are left open. 12. The Trial Court records shall be sent back forthwith. Sd/- (D K SINGH) JUDGE Sd/- (S RACHAIAH) JUDGE NM List No.: 1 Sl No.: 13