Shri. Nagappa @ Nagesh @ Naganath Vs Shri. Vinay S/O Appasab Gadde

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1 - NC: 2025:KHC-D:11781-DB RFA No. 100094 of 2020

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 11^TH DAY OF SEPTEMBER 2025

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PRESENT

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THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100094 OF 2020 (PAR/POS-)

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BETWEEN:

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SHRI NAGAPPA @ NAGESH @ NAGANATH S/O. GANGAPPA @ GANGARAM GADDE, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: GADDE PLOT, KANAK-NAGAR, RAIBAG, TQ: RAIBAG, DIST: BELAGAVI-591317.

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…APPELLANT

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(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)

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AND:

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SHRI VINAY S/O. APPASAB GADDE, AGE: 27 YEARS, OCC: AGRICULTURE, R/O: GADDE PLOT, KANAK-NAGAR, RAIBAG, TQ: RAIBAG, DIST: BELAGAVI-591317.

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MISS. VEENA D/O. APPASAB GADDE, AGE: 24 YEARS, OCC: HOUSEHOLD WORK, R/O: GADDE PLOT, KANAK-NAGAR, RAIBAG, TQ: RAIBAG, DIST: BELAGAVI-591317.

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SMT. KASTURI W/O. APPASAB GADDE, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: GADDE PLOT, KANAK-NAGAR, RAIBAG, TQ: RAIBAG, DIST: BELAGAVI-591317.

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SMT. AKKAWWA W/O. VITHAL HOSURE, AGE: 71 YEARS, OCC: HOUSEHOLD WORK,

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R/O: MAVINAHONDA, TQ: RAIBAG, DIST: BELAGAVI-591317. (DECEASED)

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SMT. SIDDAWWA W/O. SATTEPPA @ SATAPPA HEGADE, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O: RAIBAG, TQ: RAIBAG, DIST: BELAGAVI-591317.

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SMT. SHEKHAVVA W/O. VITHAL HOSURE, AGE: 67 YEARS, OCC: HOUSEHOLD WORK, R/O: MAVINAHONDA, TQ: RAIBAG, DIST: BELAGAVI-591317.

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SMT. SHOBHA W/O. APARARI AIDUDDE, AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O: RAIBAG, TQ: RAIBAG, DIST: BELAGAVI-591317. (DECEASED)

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(R4 AND R7 HAVE RELINQUISHED THEIR SHARE SO, BRINGING OF LR’S IS DISPENSED WITH AS PER ORDER DATED 15/07/2025)

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…RESPONDENTS

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(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R1-R3, R5 & R6; BRINGING LRS OF DECEASED R4 & R7 IS DISPENSED WITH V/O DATED 15.07.2025)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 AND 2 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, RAIBAG IN O.S. NO.62/2017 DATED 06.08.2018 BY ALLOWING THE PRESENT APPEAL AND DISMISS THE SUIT IN THE INTEREST OF JUSTICE AND EQUITY.

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

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3 - NC: 2025:KHC-D:11781-DB RFA No. 100094 of 2020

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HC-KAR

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The above first appeal is filed under Section 96 of CPC by the defendant No.1 calling in question the judgment and decree dated 06.08.2018 passed in OS No.62/2017 by the Senior Civil Judge and JMFC., Raibag¹ , whereunder the suit for partition and separate possession has been decreed by the trial Court.

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The parties will be referred as per their ranking before the trial Court for the sake of convenience.

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It is the case of the plaintiff that the propositus Gangappa alias Gangaram and his wife Uddavva had two children viz., Nagappa alias Nagesh alias Naganath (defendant No.1) and Appasab who was deceased and his wife Kasturi (plaintiff No.3) who had two children viz.,Vinay (son-plaintiff No.1) and Veena (daughter-plaintiff No.2). It

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1 Hereinafter for short ‘trial Court’

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is the case of the plaintiffs that since the joint family properties were not partitioned, they filed the suit.

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It is pertinent to note here that in the suit that was filed, only the first defendant was arrayed as the partydefendant to the suit. Subsequently, the defendant Nos.2 to 5 were impleaded. The defendant No.1 entered appearance in suit. However, no written statement is filed. The defendant No.3 filed the written statement and the defendants No.2, 4 and 5 filed a memo adopting the written statement of defendant No.3. It was the contention on behalf of the defendants that the daughters of Gangappa were originally not made parties to the suit and in addition to the sons of Gangappa i.e., Nagappa (Defendant No.1) and Appasab, Gangappa had 4 daughters viz., Akkavva (Defendant No.2), Siddhavva (Defendant No.3), Shekavva (Defendant 4) and Shobha (Defendant No.5). It was contended on behalf of the defendants that the defendant No.2 to 5 also have 1/6^th share in the suit properties.

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5. Consequent to the pleadings of the parties, the

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trial Court framed the following issues:

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1. Whether the plaintiffs prove that, the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants and there was no partition between them as on the date of suit?

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2. Whether the plaintiffs are entitled for partition and separate possession by metes and bounds, if so, what is their share?

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3. What Judgment or decree?

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4. The plaintiffs to prove their case, the plaintiff No.1 is examined as PW1 and got 18 documents are marked under the Ex.P1 to P18 and closed their side. Whereas the defendant No.3 is examined as DW1 and got 1 document is marked under the Ex.D1 and closed their side.

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5. I have heard the argument advanced by the learned counsel for plaintiffs and defendants.

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6. My findings on the above said issues are as under:

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Issue No.1	:In the affirmative.
Issue No.2	:In the affirmative.
Issue No.3	:As per final order on the
	following.

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Plaintiff No.1 was examined as PW1 and exhibits

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P1 to P18 marked in evidence. Defendant No.3 was examined as DW1 and exhibit D1 was marked in evidence. This trial court appreciating the material on record decreed

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the suit and held that the plaintiff Nos.1 to 3 are entitled to 1/18^th share and defendant Nos.1 to 5 are entitled for 1/6^th share in the suit schedule properties. Being aggrieved, defendant No.1 has preferred the above appeal.

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Heard the submissions of learned counsel for the appellant/defendant No.1 and learned counsel for the respondent Nos.1 to 3, 5 and 6/plaintiffs and defendant Nos.3 and 4.

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It is the primary contention of the learned counsel for the appellant-defendant No.1 that there was no adequate opportunity granted to the defendant No.1 to contest the suit and that the written statement filed by defendant Nos.2 to 5 was a collusive one. It is further contended that the plaintiffs have not produced any document to establish the joint possession of the suit properties and that the judgment and decree passed by the trial court is erroneous and likely to be interfered with.

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Per contra, learned counsel for the respondentsDefendant Nos.1 to 3, 5 and 6 justifies the judgment and

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decree passed by the trial court and further contends that despite adequate opportunity having been granted to defendant No.1, the written statement not having been filed, the trial Court was justified in decreeing the suit of the plaintiffs.

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The submissions of the learned counsel for the parties have been heard and the material on record has been perused. The only point that arise for consideration is

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“ Whether the judgement and decree passed by the trial Court warrants interference?”

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Although, various contentions have been urged on the merits of the matter, it is forthcoming that the defendant No.1 was served with suit summons and he entered appearance through his counsel and vide order dated 18.08.2017, the written statement of Defendant No.1 was taken as not filed. Subsequently, the defendant Nos.2 to 5 filed an application on 22.11.2017 under Order I Rule 10 of the CPC to come on record and since the plaintiffs had no objection to the same, they were permitted to come and

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record as defendant Nos.2 to 5. Thereafter, the defendant Nos.2 to 5 filed written statement along with application on 05.03.2018 which was taken on record. Subsequently, after trial, the trial Court vide judgment and decree dated 01.08.2018 decreed the suit.

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It is clearly forthcoming from the aforementioned that although, written statement of defendant No.1 was taken as not filed on 18.08.2017, the defendant No.1 had adequate opportunity to file written statement and contest the suit on merits. However, having regard to the fact that valuable rights in immovable properties vis-à-vis, the parties have been adjudicate upon in the suit, it is just and proper that defendant No.1 be granted another opportunity to contest the suit on its merits subject to certain conditions. The point framed for consideration is answered in the affirmative.

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Hence, the following:

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ORDER

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i) Appeal is allowed;

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ii) The judgment and decree dated 06.08.2018 passed in OS No.62/2017 by the Senior Civil Judge and JMFC., Raibag is set aside;

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iii) The parties shall appear before the trial Court in OS No.62/2017 on 15.10.2025 without the requirement of any further notice being issued in this regard;

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iv) The defendant No.1 shall file his written statement on the date of appearances before the trial Court, failing which, the defendant No.1 shall not be entitled to the benefit of this order permitting to file the written statement; v) Subsequent to the filing of the written statement, the trial Court shall afford another opportunity to all the parties to adduce evidence/further evidence and conduct further proceedings in accordance with law;.

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