- 1 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 1861 OF 2023 (PAR/INJ) BETWEEN: 1. SRI. G. BALARAJU S/O LATE GOVINDASWAMY AGED ABOUT 60 YEARS R/A NO.6, 1ST C MAIN ROAD VIVEKANANDA NAGAR BSK 3RD STAGE, KATTARIGUPPE BANGALORE-560085 MOB-8553649533 EMAIL-GANESHGANI4884@GMAIL.COM …APPELLANT (BY SRI. M.G. RAGHAVENDRA, ADVOCATE) AND: 1. SRI. G. SHEKARA S/O LATE GOVINDASWAMY AGED ABOUT 54 YEARS R/A NO.22, 4TH CROSS 13TH A MAIN ROAD HANUMANTHANAGARa BANGALORE-560 019. MOB-9481102339 2. SRI. G. KRISHNAPPA S/O LATE GOVINDASWAMY AGED ABOUT 75 YEARS R/A NO.38, 1 C MAIN ROAD MANJUNATHA NAGAR Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 ITTAMADU, BSK 3RD STAGE BANGALORE-560085 MOB-9886139190 3. SMT. P. SHANTHI W/O LATE G. RAJENDRA SINCE DEAD BY HER LRS SMT. USHA D/O LATE G. RAJENDRA AGED ABOUT 33 YEARS MOB-8123995653 SMT. KALAVATHI D/O LATE G. RAJENDRA AGED ABOUT 31 YEARS BOTH ARE R/A NO.76 1ST MAIN, 3RD CROSS KALIDASA LAYOUT BANGALORE-560085 MOB -8148995653 5. SRI. G. RAMESH S/O LATE GOVINDASWAMY AGED ABOUT 57 YEARS R/A NO.22, 4TH CROSS 13TH A MAIN ROAD HANUMANTHANAGARA BANGALORE-560019 MOB-9538715538 …RESPONDENTS (BY SRI. PRAKASH .M, ADVOCATE FOR R1; SRI. K. NARAYANA SWAMY, ADVOCATE FOR R2; SRI. GIRISH .S, ADVOCATE FOR R3(A AND B); R4 SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED - 3 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 14.06.2023 PASSED IN OS NO.7484/2019 ON THE FILE OF V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT The captioned appeal is by defendant No.3 directed against the judgment and decree rendered in O.S.No.7484/2019, whereby the trial Court has decreed the suit and granted 1/5th share to the plaintiff in the suit schedule property. 2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 3. Facts leading to the case are as under: The plaintiff instituted the present suit contending that the suit schedule property was originally allotted in - 4 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 favour of his father, late Govindaswamy, and that the same constituted the self-acquired property of the said Govindaswamy. It is the specific case of the plaintiff that upon the demise of his father, and subsequently the death of his mother, the plaintiff and defendants, being the legal heirs, jointly succeeded to the estate left behind by their parents. The grievance ventilated in the plaint is that despite repeated demands for amicable partition and separate possession, defendant Nos.1 and 4 failed and refused to effect division of the suit schedule property. The plaintiff has categorically pleaded that the cause of action arose on 24.11.2018 and again when the legal notice issued by him calling upon the defendants to effect partition was not complied with. In this backdrop, the suit was laid seeking partition and separate possession of his legitimate share in the suit schedule property. 4. The present appellant, who was arrayed as defendant No.3 before the trial Court, did not file written statement and chose to remain ex parte insofar as - 5 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 contesting the claim on merits is concerned. Defendant No.1, though filed written statement, denied the plaint averments in toto. However, it is significant to note that no specific or independent plea disputing the allotment in favour of Govindaswamy or setting up any exclusive title was taken. There was no plea of prior partition, relinquishment, or ouster. 5. On the basis of the rival pleadings, the trial Court framed necessary issues and afforded opportunity to the parties to adduce evidence. The plaintiff alone entered the witness box as PW.1 and substantiated his claim by producing documentary evidence, including records evidencing allotment of the site by the Bangalore Development Authority in favour of his father. In all, fifteen documents were marked as Exs.P-1 to P-15. Defendant No.1, despite filing written statement, did not step into the witness box to rebut the plaintiff’s evidence. Defendant No.3 neither filed written statement nor led evidence. In the absence of rebuttal evidence and in view - 6 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 of the uncontroverted documentary material, the trial Court proceeded to decree the suit, granting the plaintiff 1/5th share in the suit schedule property. 6. Having heard the learned counsel appearing for the parties and on independent re-appreciation of the pleadings as well as the oral and documentary evidence on record, this Court is of the considered view that the following points arise for determination: (i) Whether the judgment and decree of the trial Court granting 1/5th share to the plaintiff suffers from perversity or misappreciation of evidence? (ii) What Order? Finding on Point No.(i): 7. The material on record unequivocally indicates that the suit schedule property, namely a residential site, was originally allotted in favour of late Govindaswamy, the father of the plaintiff and defendants. The plaintiff has asserted his claim not on the basis of any independent - 7 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 title, but by way of succession as one of the Class–I heirs of the deceased Govindaswamy. In order to substantiate this foundational plea, the plaintiff has produced relevant documentary evidence demonstrating that the allotment was made in favour of his father and that the property stood in his name. The documentary evidence has remained unchallenged and unrebutted. Once it is established that the property was the self-acquired property of Govindaswamy and that he died intestate, succession would open in accordance with Section 8 of the Hindu Succession Act, 1956, under which the plaintiff and defendants, being his children, would succeed simultaneously and in equal shares. The plaintiff has thus discharged the initial burden cast upon him to establish the nature of the property and his entitlement by inheritance. 8. Though defendant No.1 filed written statement denying the plaint averments, he did not step into the witness box to substantiate the denial or to displace the - 8 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 documentary evidence relied upon by the plaintiff. It is well settled that mere pleading without proof does not amount to proof. In the present case, the denial in the written statement has remained a bald and unsubstantiated denial. Defendant No.3, who is the present appellant, did not even file a written statement and allowed the proceedings to culminate without contest. In the appeal, defendant No.3 seeks to assail the decree primarily on the ground that he was not afforded sufficient opportunity to contest the matter and therefore, prays for remand. Such a contention, in the considered view of this Court, is wholly misconceived. If indeed defendant No.3 was aggrieved by having been placed ex parte or contends that sufficient opportunity was not granted, the appropriate remedy available to him was to invoke Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking to set aside the ex parte decree by demonstrating sufficient cause. - 9 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 9. An appeal under Section 96(2) of the Code of Civil Procedure, 1908, even against an ex parte decree, is maintainable; however, in such an appeal, the appellant must demonstrate that the decree is unsustainable on merits and that the plaintiff has failed to establish his case in accordance with law. The appellant cannot indirectly seek restoration of the suit or a fresh opportunity to contest by urging grounds that properly fall within the ambit of Order IX Rule 13 CPC. 10. On a careful perusal of the grounds urged in the memorandum of appeal, this Court finds that the appellant has raised routine and omnibus grounds, without specifically pointing out any error in appreciation of evidence or misapplication of law by the trial Court. Except asserting that sufficient opportunity was not granted to file written statement, no substantive defence has been disclosed even at the appellate stage. The relationship between the parties is not in dispute. The allotment of the site in favour of Govindaswamy stands established through - 10 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 documentary evidence. It has also come on record that a residential house was subsequently constructed on the said site. In the absence of any plea of prior partition, exclusion, relinquishment, or adverse possession, and in the absence of rebuttal evidence, the trial Court was fully justified in decreeing the suit. 11. This Court, on independent re-appreciation of the entire material on record, does not find any perversity, illegality, or misreading of evidence in the findings recorded by the trial Court. The conclusions drawn are in consonance with the pleadings and the evidence placed on record. Accordingly, Point No.(i) is answered in the Negative. Finding on Point No.(ii): 12. For the foregoing reasons, this Court proceeds to pass the following: - 11 - HC-KAR NC: 2026:KHC:10388 RFA No. 1861 of 2023 ORDER Appeal is devoid of merits and accordingly, stands dismissed. The pending interlocutory applications, if any, stands disposed of. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA List No.: 1 Sl No.: 13