- 1 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2026 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL REGULAR FIRST APPEAL NO.1509/2021 (PAR) BETWEEN: 1. SRI. HEBBALEGOWDA S/O BEEREGOWDA AGED ABOUT 44 YEARS. 2. SRI. ANANTHA S/O BEEREGOWDA AGED ABOUT 39 YEARS. 3. SRI. KUMAR S/O BEEREGOWDA AGED ABOUT 33 YEARS. APPELLANT 1 TO 3 ARE R/O. UTHANAHALLI VILLAGE VARUNA HOBLI, MYSURU TALUK MYSURU DISTRICT 571311. 4. SMT. THAYAMMA @ UMA W/O NAGARAJU AGED ABOUT 45 YEARS R/O. HALAMBURU MUNTI VILLAGE BELEGERE HOBLI NANJANGUD TALUK MYSORE DISTRICT 571129. …APPELLANTS (BY SRI. V.R. BALARAJ, ADV.,) Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 AND: 1. SMT. MALAMMA D/O LATE SRI. M. MAYANNA AGED ABOUT 65 YEARS R/AT. NO.1683, THOPINA BEEDI NANJANGUD TOWN MYSURU DISTRICT 571301. 2. SRI. KEMPEGOWDA SINCE DEAD REP. BY HIS LRS I.E., RESPONDENTS 3 TO 5. 3. SRI. K. MAHADEVU S/O KEMPEGOWDA AND JAVANAMMA AGED ABOUT 45 YEARS. 4. SRI. K. MALLESHA S/O KEMPEGOWDA AND JAVANAMMA AGED ABOUT 35 YEARS. 5. SRI. K. MANJUNATH S/O KEMPEGOWDA AND JAVANAMMA AGED ABOUT 35 YEARS. RESPONDENTS 3 TO 5 ARE R/O. GODDANAPURA VILLAGE CHIKKAYYANA CHATTRA HOBLI NANJANGUD TALUK MYSURU DISTRICT 571301. …RESPONDENTS (BY SRI. B. SHARATH KUMAR, ADV., FOR R1, R3 TO R5 V/O/DTD:11.09.2024, R3 TO R5 ARE LRS OF DECEASED R2) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI OF THE CPC., PRAYING TO CALL FOR THE RECORDS OF O.S.NO.92/2016 ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE AND CJM, MYSURU AND EXAMINE THE EVIDENCE ON RECORD AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 12.01.2021 PASSED BY THE LEARNED III - 3 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 ADDL. SENIOR CIVIL JUDGE AND CJM MYSURU IN O.S.NO.92/2016 BY ALLOWING THIS APPEAL & ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL) This regular first appeal is filed under Section 96 read with Order XLI of the Code of Civil Procedure, 1908, by defendant Nos.2 to 5 challenging the judgment and decree dated 12.01.2021 passed in O.S.No.92/2016 by the III Additional Senior Civil Judge and CJM, Mysuru (for short 'the Trial Court'). 2. The brief facts leading to filing of this appeal are that respondent No.1-plaintiff filed a suit for partition and separate possession in O.S.No.92/2016 seeking prayer for granting 1/3rd share in the joint family properties. The Trial Court, after considering the material on record, decreed the suit holding that the plaintiff is - 4 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 entitled to 1/3rd share and also ordered for mesne profits. Being aggrieved, by the said judgment and decree, the appellants are in appeal. 3. Sri.V.R.Balaraj, learned counsel appearing for the appellants submits that the Trial Court has committed a grave error in passing the judgment and decree exparte. It is submitted that respondent No.1 has not placed the family genealogy before the Trial Court and has not proved that she is a member of the joint family of Sri.Mayanna. It is further submitted that the Sri.Mayanna and his wife Beeramma had executed a will in favour of defendant No.1, but the plaintiff has fraudulently not disclosed the said fact before the Trial Court. It is also submitted that no summons was served on appellants-defendant Nos.2 to 5 due to which they were unable to appear before the Trial Court and were placed ex-parte. It is contended that the Trial Court is required to re-consider the suit on merits by providing opportunity to the appellants. It is further contended that the valuable rights of the appellants over - 5 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 the immovable properties is involved, hence, he seeks to provide one opportunity to place the defense in the suit. Hence, he seeks to allow the appeal and remand the matter back to the Trial Court. 4. Per Contra, Sri.B.Sharath Kumar, learned counsel appearing for respondent Nos.1, 3 to 5 supports that impugned judgment and decree passed by the Trial Court. It is submitted that the Trial Court has passed the impugned judgment and decree after considering the pleading and evidence available on record in its proper perspective and the appellants were negligent, despite service of summons they failed to appear, therefore, they cannot seek for remand. Hence, he seeks to dismiss the appeal. 5. We have heard the arguments of the learned counsel for the appellants, learned counsel for respondent Nos.1, 3 to 5 and meticulously perused the material available on record. We have given our anxious - 6 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 consideration to the submissions advanced on both the sides. 6. The point that arises for our consideration is: "Whether the impugned judgment and decree of the trial Court calls for any interference?" 7. The aforesaid point is answered in the positive for the following reasons: a) The material on record indicates that respondent No.1 filed a suit against the appellants and the respondents Nos.2 to 5 for the relief of partition and separate possession in O.S.No.92/2016 in respect of the suit schedule properties. It was the specific contention of respondent No.1-plaintiff in the said suit that the suit schedule properties are joint family properties and they were not partitioned earlier. The defendant Nos.2 and 4 appeared before the Trial Court but did not file the written statement, whereas, the defendant Nos.3 & 5 to 9, were - 7 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 placed ex-parte, as a result the suit was effectively unopposed. b) The respondent No.1-plaintiff adduced evidence by examining herself as PW1 and also got marked documents as per Exs.P1 to P8. The Trial Court after considering the evidence of respondent No.1-plaintiff and drawing adverse inference from the absence of any defense to the same, proceeded to pass the impugned judgment and decree. The primary contention of appellants-defendant Nos.2 to 5 is that the defendant Nos.2 and 4 though appeared, could not file written statement and no notice was served on defendant Nos.3 and 5. It is not in dispute that the appellants have not filed the written statement and the suit came to be decreed in the absence of their defense. c) We have taken note of the fact that the suit is of the year 2016 and the impugned judgment and decree is passed during covid-19 pandemic and the reasons - 8 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 explained in the appeal appear to be genuine for non- appearance of appellants before the trial Court. d) This Court cannot lose sight of the fact that the plaintiff in the said suit is seeking the relief of partition and separate possession over the suit schedule properties consisting of eight properties and the appellants have specifically pleaded that they source their title based on the Will executed by Sri.Mayanna, the original propositus of the family. We are of the considered view that, the issue involving immovable properties requires re- consideration on the ground that the summons was not effectively served on some of the defendants and also that the appellants seek to rely on a Will executed by Sri.Mayanna and his wife Smt.Beeramma. When things stood thus, we are of the view that one opportunity is required to be provided to the appellants-defendant Nos.2 to 5 to contest the suit. - 9 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 e) However, this Court also cannot lose sight of the fact that the defendants cannot be allowed to drag the proceedings for their lapses, hence, the appeal is required to be allowed on terms. 8. For the aforementioned reasons, we proceed to pass the following: ORDER i. Appeal is allowed. ii. The impugned judgment and decree dated 12.01.2021 passed in O.S.92/2016 by the III Additional Senior Civil Judge and CJM, Mysuru, is hereby set aside and the matter is remanded back to the Trial Court for re- consideration subject to condition that the appellants-defendant Nos.2 to 5 shall pay cost of Rs.25,000/- to the respondent No.1-plaintiff and the appellants-defendant Nos.2 to 5 shall file their written statement on or before 12.03.2026. - 10 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 iii. The appellants-defendant Nos.2 to 5 shall appear before the trial Court on 12.03.2026 without expecting any notice from the trial Court. iv. It is made clear that if the written statement is not filed on or before the given date and the appellants failed to appear on 12.03.2026, the impugned judgment and decree would stand revived. v. It is open for the defendant Nos.7 to 9 to appear before the trial Court and take their stand as the plaintiff and defendant Nos.7 to 9 are represented by same counsel in this appeal. vi. The trial Court is directed to regulate its proceedings in accordance with law. vii. In view of disposal of this appeal, pending interlocutory applications, if any, stand disposed of. - 11 - HC-KAR NC: 2026:KHC:9086-DB R.F.A. No.1509/2021 It is made clear that this Court has not expressed any opinion on the merits of the case. No order as to costs. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 1