Sri. Yallappa S/O Ningappa Gujjanavar Vs Smt. Paravva W/O Hanumantappa Amminabhavi

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1 - NC: 2025:KHC-D:7945-DB RFA No. 100347 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF JUNE, 2025

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PRESENT

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THE HON'BLE MR. JUSTICE R.NATARAJ

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AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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REGULAR FIRST APPEAL NO.100347 OF 2024 (PAR/POS)

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BETWEEN:

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SRI. YALLAPPA S/O. NINGAPPA GUJJANAVAR, AGE: 75 YEARS, OCC. AGRICULTURE, R/O. TEGUR VILLAGE, TQ. AND DIST. DHARWAD-580011.

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Digitally signed byYASHAVANT NARAYANKAR Location: HIGH YASHAVANTNARAYANKAR COURT OFKARNATAKADHARWAD BENCH DHARWAD Date: 2025.06.27 10:52:31 +0530

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SMT. SIDDAVVA D/O. YALLAPPA GUJJANAVAR, AGE: 49 YEARS, OCC. HOUSEHOLD, R/O. TEGUR VILLAGE, TQ. AND DIST. DHARWAD-580011.

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SRI. ANAND S/O. YALLAPPA GUJJANAVAR, AGE: 47 YEARS, OCC. AGRICULTURE, R/O. TEGUR VILLAGE, TQ. AND DIST. DHARWAD-580011.

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SRI. KAREPPA S/O. YALLAPPA GUJJANAVAR, AGE: 45 YEARS, OCC. AGRICULTURE, R/O. TEGUR VILLAGE, TQ. AND DIST. DHARWAD-580011.

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SRI. IRAPPA S/O. YALLAPPA GUJJANAVAR,

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AGE: 43 YEARS, OCC. AGRICULTURE, R/O. TEGUR VILLAGE, TQ. AND DIST. DHARWAD-580011.

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SRI. SHIVAPPA S/O. YALLAPPA GUJJANAVAR, AGE: 39 YEARS, OCC. AGRICULTURE, R/O. TEGUR VILLAGE, TQ. AND DIST. DHARWAD-580011.

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…APPELLANTS

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(BY SRI. P.R. BENTUR, ADVOCATE)

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AND:

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SMT. PARAVVA W/O. HANUMANTAPPA AMMINABHAVI, (BEFORE MARIAGE PARAVVA D/O. NINGAPPA GUJJANAVAR) AGE: 79 YEARS, OCC. AGRICULTURE, R/O. H.NO. 113, JANATA PLOT ONI, TEGUR ONI, HOSA TEGUR VILLAGE, TQ. AND DIST. DHARWAD-580011.

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…RESPONDENT

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(BY SRI. R.H. ANGADI, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 02.04.2024 PASSED BY THE LEARNED III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, DHARWAD IN O.S.NO.149/2019 AND CONSEQUENTLY DISMISSED THE SUIT OF THE PLAINTIFF AND CALL FOR THE RECORDS OF THE SUIT.

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THIS APPEAL, COMING ON FOR FURTHER ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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NC: 2025:KHC-D:7945-DB RFA No. 100347 of 2024

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The defendants 1 to 6 in O.S.No.149/2019 on the file of the III-Additional Senior Civil Judge and CJM, Dharwad¹ have filed this appeal challenging the judgment and decree dated 02.04.2024 passed therein by which it as declared that the plaintiff is entitled to half share in the suit schedule properties.

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For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court.

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The suit in O.S.No.149/2019 was filed for partition and separate possession of an agricultural land and three house properties. The plaintiff claimed that Yamanavva was her maternal grandmother, who had two daughters viz., Gujavva and Rajavva. She claimed that she and defendant No.2 are the children of Gujjavva, while Rajavva and her

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1 Hereinafter referred to as ‘Trial Court’

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husband died issueless. She claimed that defendants 2 to 6 are the children of defendant No.1. She contended that her maternal grandmother had acquired the suit item No.1 in the year 1967 and the remaining properties were also her selfacquired properties and that she died intestate on 14.02.1968. She claimed that she and defendant No.1 were the nearest legal heirs to Smt.Gujjavva. She contended that the defendant No.1 unlawfully got his name entered in the revenue records on 22.04.1988 and denied the claim of the plaintiff even though she had never given up her claim. She alleged that defendant No.1 had parted with 02 acres of land to her cultivation and that a year back, he had denied the right, title and interest of the plaintiff and therefore, she was advised to seek partition and separate possession of her share in the suit schedule properties.

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The defendants contested the suit and filed their written statement. They inter alia contended that the suit properties belonged to Yamanavva and after her death, were succeeded by her two daughters viz., Rajavva and Gujjavva. They contended that in the year 1988 itself Smt. Gujjavva

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and Rajavva had relinquished their right in favour of defendant No.1 and submitted a Varadi to enter the name of defendant No.1 in the revenue records. Accordingly, his name was entered in the revenue records as per Mutation Entry No.1739. Later, Smt.Gujjavva died in the year 1990 and Rajavva died in the year 1991. It was contended that the plaintiff has no right, title or interest in the suit schedule properties as she had allowed the revenue entries to remain for more than 31 years. It was also contended that the marriage of the plaintiff was performed at the expense of defendant No.1 and that he had handed over gold and silver ornaments and therefore, she was not entitled to any share in the suit schedule properties. It was also contended that the defendants inter se had partitioned the suit properties in the year 2000 and revenue entries were accordingly made out in their respective names. It was contended that the suit properties were the ‘Stree Dhan’ properties of the mother of defendant No.1 and therefore, the plaintiff had no right, title or interest to claim partition.

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Based on these contentions, the Trial Court

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framed the following issues and additional issues:

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ISSUES

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1. Whether the plaintiff proves that suit properties are ancestral properties of her and defendant No.1?

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2. Whether the plaintiff is entitled for the relief of partition and separate possession of ½ share of the suit properties as prayed?

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3. What order or decree?

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ADDITIONAL ISSUES

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1. Whether the defendants prove that the suit of plaintiff is bad for non-joinder of necessary parties?

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2. Whether the defendants prove that the suit of the plaintiff is barred by limitation and her right is extinguished?”

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The plaintiff was examined as PW1. She marked Exs.P1 to P8. The defendant No.3 was examined as DW1 and marked Exs.D1 to D12. However, despite granting sufficient opportunities, the defendant No.3 did not turn up for crossexamination and also did not address arguments. Therefore,

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the Trial Court, based on the oral and documentary evidence, held that the plaintiff is entitled to an undivided share in the suit schedule properties and consequently, decreed the suit of the plaintiff and declared that she is entitled for half share in the suit properties. Being aggrieved by the said judgment and decree, the defendants have filed this appeal.

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The defendants have contended that the Trial Court did not give sufficient opportunity to lead evidence. They contended that the defendant No.1 was suffering from serious health issues and that DW1 was taking care of defendant No.1. As a result, DW1 could not appear before the Trial Court to face the cross-examination. Besides this, it is contended that as per the evidence of PW1, adduced before the Trial Court, she was not entitled to any share and that the Trial Court did not take note of this fact.

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Learned counsel for the respondent-plaintiff, on

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the other hand, contended that the defendants did not dispute the fact that the plaintiff and defendant No.1 are the

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children of Gujjavva and therefore, the Trial Court rightly decreed the suit and declared that the plaintiff is entitled to half share in the suit schedule properties. He also contends that the Trial Court had given enormous opportunities to DW1 to present himself for cross-examination, but DW1 deliberately absented from the proceedings of the Trial Court. Therefore, the Trial Court did not have any other alternative than to decree the suit. Hence, prays for dismissal of the appeal.

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We have considered the submissions of the learned counsel for the defendants and the learned counsel for the plaintiff. The only point that arises for our consideration in this appeal is:

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“Whether the defendants deserve an opportunity to participate in the proceedings by presenting DW1 for cross-examination and whether the DW1 had sufficient reason for staying away from the proceedings of the Trial Court?”

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It appears that when the suit was filed in the year 2019, the defendant No.1 was 71 years old. It also appears

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that the evidence of DW1 was recorded on 12.12.2023. Thereafter, certain applications were filed i.e. I.A.No.14, 15 and 16. The applications filed by the plaintiff in I.A.No.15 and 16 were allowed and the plaintiff was permitted to amend the plaint and the case stood adjourned for filing of an additional written statement. The additional written statement was not filed and the suit was posted for crossexamination of DW1 on 27.02.2024, 04.03.2024 and 06.03.2024. The evidence of DW1 was discarded on 06.03.2024 and the case was adjourned to 12.03.2024, 13.03.2024, 18.03.2024 and 20.03.2024. However, the defendant No.3 did not take any steps to file application before the Trial Court for recalling the stage of the suit and to present himself for cross-examination. The advocate, who represented the defendants, also retired from the case on 30.03.2024. The defendants have pleaded in the appeal that DW1 was defending the suit and that he could not attend the proceedings as he was taking care of defendant No.1. Having regard to the age of defendant No.1, it is quite probable that due to health issues of defendant No.1, the defendant No.3

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stayed away from the proceedings of the Court. There is no reason why this contention of defendant No.3 should be disbelieved. Therefore, we are of the opinion that DW1 was prevented by sufficient cause in appearing before the Court and presenting himself before the Trial Court for crossexamination by the plaintiff.

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Since, the defendants have come up with a specific defence that the plaintiff was not entitled to a share in the suit schedule properties as it was his mother’s property, where the plaintiff did not have any share, the defendants had a formidable defence and therefore, an opportunity deserves to be granted to the defendants to contest the suit on merits by presenting DW1 for crossexamination. However, this cannot be without compensating the plaintiff for the loss of time and the opportunity as well as the expenses incurred in pursuing the suit to its logical end. Therefore, we hold that DW1 was prevented by sufficient cause in presenting himself for cross-examination and an opportunity deserves to be granted to him to present himself before the Trial Court for cross-examination.

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Consequently, we answer the above point in favour of the defendants and accordingly, the following order is passed.

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ORDER

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i) The appeal is allowed.

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ii) The impugned judgment and decree dated 02.04.2024 passed by the Trial Court in O.S.No.149/2019 is set aside and the suit before the Trial Court is restored, however subject to payment of cost of ₹50,000/payable by the defendants to the plaintiff on the next date of hearing.

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iii) It is made clear that DW1 shall present himself for cross-examination before the Trial Court on the date fixed for his appearance and the plaintiff shall go on with the crossexamination of DW1 without fail.

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iv) It is made clear that if the defendants fail to avail this opportunity, the Trial Court is at liberty to proceed with the suit and decide it in accordance with law.

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