Smt. Renavva W/O Parashuram Halalli Vs Sri. Yallappa S/O Shivaji Halalli

W/O RAMAPPA HALALLI, AGE: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: C/O. HANAMANTH DABAKE HUDED ONI, NEAR RABHAVENDRA TEMPLE, R/O: HARLAPUR, TALUK: GADAG, DISTRICT: GADAG-582 103, NOW AT SAUNDATI, DIST: BELAGAVI-591 123.

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… RESPONDENTS (BY SRI. SABEEL AHMED, ADVOCATE FOR R1 AND R3; R4-SERVED; R4 IS TREATED AS LR’S. OF DECEASED R2)

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THIS MSA IS FILED UNDER SECTION 43 RULE 1 (U) OF CPC, PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 07.02.2023 PASSED IN R.A. NO.177/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG.

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:8491 MSA No. 100009 of 2023

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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Though the appeal is listed for admission, but with consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.

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This appeal is filed by the plaintiffs/appellants questioning the order dated 07.02.2023 passed in R.A.No.177/2019 on the file of Principal Senior Civil Judge and CJM, Gadag, thereby, the matter is remanded to the Trial Court for fresh consideration.

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Heard the arguments from both the learned counsel for the parties and perused the materials placed on record.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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The plaintiffs have filed suit for partition and separate possession. The defendants have appeared and

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4 - NC: 2025:KHC-D:8491 MSA No. 100009 of 2023

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HC-KAR

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filed written statement, but thereafter they have not contested the suit by cross-examining the plaintiffs and also have not led evidence. Therefore, the Trial Court has decreed the suit.

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Being aggrieved by it, the defendants have preferred regular appeal before the First Appellate Court and the First Appellate Court has allowed the appeal and set aside the judgment and decree passed by the Trial Court and remanded the matter to the Trial Court for fresh disposal by giving an opportunity to the defendants to contest the suit. This order under challenge in this appeal.

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Upon perusal of the records, though the defendants have appeared in the suit and filed written statement, but have not contested the suit. The defendants have not cross-examined the plaintiffs and attesting witnesses adduced evidence on behalf of the plaintiffs and

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also, the defendants have not adduced any evidence. Therefore, considering all these aspects, the First Appellate

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5 - NC: 2025:KHC-D:8491 MSA No. 100009 of 2023

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HC-KAR

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Court remanded the matter to the Trial Court for fresh consideration.

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It is submitted by the counsel for the appellants that even if the suit is contested, the result would be the same as the Trial Court has correctly awarded share considering coparceners, and properties are the ancestral properties.

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Whatever may be the result in the suit, but the fact remains that the defendants have not contested the suit; therefore, the First Appellate Court is justified in remanding the case to the Trial Court. The remand is at the instance of the defendants. Hence, once again the plaintiffs are constrained to contest the suit for no fault of them. Therefore, for which, the defendants shall pay cost of Rs.10,000/- to the plaintiffs.

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Accordingly, the appeal is dismissed with cost of Rs.10,000/- payable by the defendants to the plaintiffs.

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In the result, I proceed to pass the following:

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NC: 2025:KHC-D:8491 MSA No. 100009 of 2023

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HC-KAR

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ORDER

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i. The appeal is dismissed with cost of

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Rs.10,000/- payable by the defendants to plaintiffs.

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ii. The order dated 07.02.2023 passed in R.A.No.177/2019 on the file of Principal Senior Civil Judge and CJM, Gadag is confirmed.

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iii. The Trial Court shall dispose of the suit as expeditiously as possible within a period of 4 months from the date of receipt of copy of this judgment.

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