Allowed

Sri. Appojappa v. Sri Narayanaswamy

Karnataka HC20 Feb 2024RSA/1229/2023

Case brief

AI extract

What is this about?

Second appeal by defendant against first appellate court's reversal decreeing plaintiff a 1/3rd share in suit property. Court held neither party had adduced evidence on the nature of the property and parties' substantive rights were not effectively adjudicated. Both decrees set aside; matter remitted to trial court with liberty to defendants to file written statement, on payment of costs.

What the court decided

AI extract

Sri. Appojappa Vs Sri Narayanaswamy — Partition | Karnataka HC (2024)

¶1

NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 20^TH DAY OF FEBRUARY, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.1229 OF 2023(PAR/POS)

¶7

BETWEEN:

¶8

SRI. APPOJAPPA, S/O LATE NARASIMHAIAH, AGED ABOUT 79 YEARS, R/AT NANDI VILLAGE AND HOBLI, CHIKKABALLAPURA TALUK - 562 103.

¶9

REPRESENTED BY GPA HOLDER, SRI. N.A. GANGADHARA.

¶10

…APPELLANT

¶11

(BY SRI. SHIVARAJ N ARALI, ADVOCATE)

¶12

AND:

¶13

Digitally signed by SUMA B N

¶14

Location: High Court of Karnataka

¶15

SRI. NARAYANASWAMY, S/O LATE NARASIMHAIAH, AGED ABOUT 76 YEARS, R/AT NANDI VILLAGE AND HOBLI, CHIKKABALLAPURA TALUK - 562 103.

¶16

SRI. KRISHNAPPA, S/O. LATE NARASIMHAIAH, AGED ABOUT 70 YEARS, R/AT NANDI VILLAGE AND HOBLI, CHIKKABALLAPURA TALUK - 562 103.

¶17

…RESPONDENTS

¶18

(BY SRI. NARAYANAPPA H.V., ADVOCATE FOR C/R1; R2 - SERVED)

¶19

¶20

NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶21

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.04.2023 PASSED IN RA.NO. 75/2020 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.08.2020 PASSED IN O.S.NO.274/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, AND CJM, CHIKKABALLAPUR.

¶22

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶23

JUDGMENT

¶24

This appeal is by the defendant No.1 aggrieved by the judgment and order dated 18.04.2023 passed in R.A.No.75/2020 on the file III Additional District and Sessions Judge, Chikkaballapura, (for short 'the First Appellate Court'), by which the First Appellate Court reversed and set aside the judgment and decree dated 26.08.2020 passed in O.S.No.274/2017 on the file of the Principal Senior Civil Judge, and CJM, Chikkaballapur, and consequently decreed the suit of the plaintiff allotting 1/3^rd share.

¶25

3 - NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶26

The aforesaid suit in O.S.No.274/2017 is filed by the plaintiff seeking partition and separate possession in respect of two items of suit schedule property. Records reveal that the said suit was decreed on 01.06.2018 allotting 1/3^rd share to the plaintiff on the premise that defendants 1 and 2 had not contested in the suit. A Miscellaneous Case No.25/2018 came to be filed by the defendants, which was allowed providing an opportunity to the defendants to file a written statement and contest the suit and the said suit was restored by order dated 22.06.2019. However, despite providing such an opportunity, though the defendants appeared when the matter was listed on 16.08.2019 and 16.09.2019, did not file the written statement. Accordingly, the matter was heard ex-parte and the Trial Court taking note of the fact that the plaintiff had not produced any evidence to establish his contention of the suit property being joint family property, except producing four documents at Ex.P1 to P4 viz., RTC and Mutation Register extracts, which reflected the name of defendant No.1 in respect of the suit schedule property, came to the conclusion that the same

¶27

¶28

NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶29

was not sufficient enough to hold that the property to be the family property. Accordingly, dismissed the suit vide judgment and decree dated 26.08.2020. Aggrieved by the same, plaintiff preferred R.A.No.75/2020 before the First Appellate Court. The First Appellate Court by the impugned judgment and order allowed the appeal, setting aside the judgment and decree passed by the trial Court

¶30

on the premise that despite providing an opportunity, the defendants had neither filed written statement nor had cross-examined the plaintiff's witness. The First Appellate

¶31

Court also opined that under the Hindu Law, the joint family property is to be presumed unless proved and since the defendants did not prove any partition amongst themselves and the plaintiff, the plaintiff had proved the property as the joint family property. Accordingly, proceeded to pass the impugned judgment and order awarding 1/3^rd share in the plaint schedule property in favor of the plaintiff. Aggrieved by the same, the 1^st defendant has preferred the present appeal.

¶32

5 - NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶33

This appeal was admitted by order dated 01.02.2024 to consider the following substantial question of law:-

¶34

"Whether the first appellate court is justified in reversing the finding and conclusion of the Trial Court, though the plaintiff failed to prove the suit schedule property to be the joint family property and consequently decreed the suit relying upon the revenue entries merely for the reason of appellant/defendant not filing the written statement ?"

¶35

There has been no representation on behalf of the respondents.

¶36

Learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal, submitted that when the Trial Court had dismissed the suit for want of acceptable evidence by the plaintiff to prove the suit property to be joint family property and in the absence of any such material being produced, the First Appellate Court ought not to have decreed the suit merely for the reason that the defendant did not file written statement or

¶37

¶38

NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶39

cross-examine the plaintiff's witness. He submits that though defendants were provided with an opportunity before the trial Court, the matter was posted on 16.08.2019 and 16.09.2019, it was the period when the COVID was surging. The appellant/defendant No.1 was aged 80 years and was restricted of his mobility and was confined to home. The appellant did not file written statement or instruct the counsel for cross-examination. It was during this period the trial Court proceeded with the matter, though resulted in dismissal. Since the suit was

¶40

dismissed, there was nothing for the appellant to have taken steps in the matter. It is his submission that however, First Appellate Court has decreed the suit only

¶41

on the ground of defendant not filing the written statement or cross-examining the plaintiff's witness. Learned counsel refers to the judgment of the Division Bench of this Court in the case of NIZAMUDDIN &

¶42

ANOTHER VS. SMT. AKHTRBEGAM AND OTHERS reported in ILR 2021 KAR 3297 where in a similar situation involved in the matter, the Division Bench of this Court has held that adverse party is not debarred from cross-

¶43

¶44

NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶45

examining the plaintiff or the plaintiffs' witness, for the reason of non-filing written statement. The Division Bench of this Court has further proceeded to permit the defendant therein to file written statement and to contest the matter. Relying upon the same, learned counsel submits that a similar opportunity be granted to the appellant herein. Thus he submits that the appeal be allowed and the matter be remanded the matter to the Trial Court and provided an opportunity to the appellant to contest the suit.

¶46

Heard and perused the records.

¶47

As rightly pointed out by the learned counsel for the

¶48

appellant, the age of the appellant appears to be around 80 years when the suit was filed. Though he was afforded

¶49

an opportunity by restoring the suit, the period at which the evidence was recorded and judgment was pronounced by the trial Court was around the time, when the COVID 19 Pandemic had affected the normal life. This Court can take notice the fact that the appellant, who is aged about 80 years, must have been restricted from he moving

¶50

8 - NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶51

around preventing him from either appearing before the Court or contacting his counsel. That itself, may not be a reason for the First Appellate Court to hold against them and decree the suit as found in the present matter.

¶52

The Trial Court dismissed the suit for want of evidence on behalf of the plaintiff. The plaintiff appears to have filed an application before the First Appellate Court under Order 41 Rule 27 of CPC seeking to produce only a genealogical tree, which also appears to have been rejected. The fact remains that neither of the parties have brought on record any evidence with regard to the nature and status of the property. This in the considered opinion of the Court, would not amount to adjudication of the matter, bringing an end to the litigation in the manner known to law. Opportunity to the parties is not a mere formality, it should be seen that their substantive rights are effectively adjudicated, which is missing in the instant proceeding. Substantial question of law is answered accordingly.

¶53

9 - NC: 2024:KHC:7087 RSA No. 1229 of 2023

¶54

In that view of the matter, appeal succeeds. The

¶55

judgment and decree dated 18.04.2023 passed in R.A.No.75/2020 by the First Appellate Court and the judgment and decree dated 26.08.2020 passed in O.S.No.274/2017 by the Trial Court are set aside. The matter is remitted to the Trial Court. Defendants are permitted to file written statement within 30 days from the date of receipt of a certified copy of this order.

¶56

The Trial Court shall issue notice to the parties and after affording an opportunity to both the parties shall proceed in the matter in accordance with law. However, the appellant shall pay cost of Rs.10,000/- to the plaintiff

¶57

before the trial Court.

¶58

Sd/JUDGE

¶59

NG List No.: 2 Sl No.: 9 CT:SNN

Sri. Appojappa v. Sri Narayanaswamy

Case brief

What is this about?

What the court decided

Sri. Appojappa v. Sri Narayanaswamy

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

S.L Geethanjali, Vs Suresh Gowda @ Suri M R

Sri v Hombegowda Vs Smt Hemavathi

Vijayamma Vs Ramegowda

Mrs Maureen C Joseph Vs Nill

Smt. Lakshmamma, Vs Smt. Channamma

Sri K Channarayappa Vs Smt Susheelamma K