Shekappa S/O Kallappa Ankalaki Vs Smt. Neelamma Alias Nirmala W/O Manjunath Malali

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NC: 2025:KHC-D:1620 RFA No. 100452 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100452 OF 2024 (PAR/POS)

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BETWEEN:

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SHEKAPPA S/O. KALLAPPA ANKALAKI, AGE. 56 YEARS, OCC. AGRICULTURE, R/O. BAGADAGERI, TQ. KALAGHATAGI, DIST. DHARWAD-581196.

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SMT. BASAVVA W/O. MAHADEVAPPA MARILINGANAVAR, AGE. 54 YEARS, OCC. AGRICULTURE, R/O. BAGADAGERI, TQ. KALAGHATAGI, DIST. DHARWAD-581196.

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BASAPPA S/O. KALLAPPA ANKALAKI, AGE. 50 YEARS, OCC. AGRICULTURE, R/O. HANCHINAL, TQ. SOUDATTI, DIST. BELAGAVI-581196.

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…APPELLANTS

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA

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(BY SRI B.V. SOMAPUR, ADVOCATE)

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AND:

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SMT. NEELAMMA @ NIRMALA W/O. MANJUNATH MALALI, AGE. 42 YEARS, OCC. AGRICULTURE, R/O. BAGADAGERI, TQ. KALAGHATAGI,

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DIST. DHARWAD-587212.

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PRAVEEN S/O. HANAMANTAPPA BENAKATTI, AGE. 35 YEARS, OCC. HOUSEHOLD WORK, R/O. KADARKOPPA, TQ. MUDHOL,

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DIST. BAGALKOT-580112.

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…RESPONDENTS

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(BY SRI V.G. BHAT, ADVOCATE FOR R1;

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R2-NOTICE HELD SUFFICIENT)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W. ORDER 41 RULE 1 OF CPC., PLEASED TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, KALAGHATAGI IN O.S. NO.127/2023 DATED 16.03.2024, REMAND THE MATTER TO THE TRIAL COURT FOR FRESH HEARING BY GIVING OPPORTUNITY TO THE APPELLANTS/DEFENDANTS, TO FILE THEIR WRITTEN STATEMENT AND PRODUCE ORAL AND DOCUMENTARY EVIDENCE, GRANT COST OF THE ENTIRE PROCEEDING TO THE APPELLANTS AND ETC.,

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NC: 2025:KHC-D:1620 RFA No. 100452 of 2024

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

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ORAL JUDGMENT

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

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This appeal is filed by defendants No.1 to 3, challenging the judgment and decree dated 16.03.2024, passed in O.S.No.127/2023, by the Court Senior Civil Judge and JMFC, Kalaghatagi (hereinafter referred to as the ‘Tribunal’), thereby the suit filed for partition and separate possession is decreed by the Trial Court.

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For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court.

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The plaintiff had filed a suit for partition and separate possession by claiming that the suit schedule properties are ancestral and joint family properties.

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It is the case of the plaintiff that the plaintiff and defendants No.1 to 3 constitute joint family. The

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defendant No.4 is purchaser of the property from defendants No.1 and 3. In the suit, summonses were served to defendants. It is observed in the cause title that all the defendants No.1 to 4 were served and defendants No.1 and 3 were represented by advocate one Sri. M. Nagaraj. Defendants No.2 and 4 were placed an ex-parte.

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In the suit, there is no evidence from the defendants, both orally and documentarily. Therefore, the trial Court by accepting the case of the plaintiff, decreed the suit in favour of plaintiff.

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The learned counsel for the

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appellants/defendants No.1 to 3 submitted that the defendants No.1 and 3 have engaged service of advocate Sri. M. Nagaraj, but the said advocate died on 11.03.2024 and has produced the copy of death certificate of the said advocate. The trial Court has passed judgment and decree on 16.03.2024. Therefore, under these circumstances, the defendants No.1 to 3 could not know the proceedings in

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the suit, since their advocate died. But in the meantime, the trial Court has proceeded to pass the judgment and decree five days after death of the aforesaid advocate. Therefore, prays to remand the case to the trial Court by giving an opportunity to the defendants to contest the suit.

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Upon perusal of the judgment and decree, it is

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shown that the defendants No.1 and 3 are represented by advocate one Sri. M.Nagaraj. The defendants No.2 and 4 are placed ex-parte. The counsel for appellants/defendants No.1 to 3 submitted death certificate stating that advocate Sri. M.Nagaraj died on 11.03.2024. The judgment is passed on 16.03.2024. Therefore, there could not be effective representation on behalf of the defendants. The date of death of the advocate for defendants No.1 and 3 and date of passing judgment are too close. That the defendants could not get notice of death of the aforesaid advocate. Therefore, the judgment and decree passed is amounting to without representation of the defendants.

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Therefore, the judgment and decree passed by the trial Court is liable to be set aside and remanded the matter to the trial Court for fresh consideration. The defendants are given liberty to engage advocates and file written statement and contest the suit.

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8. Hence, I proceed to pass the following:

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ORDER

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