Renuka W/O Manikaprabu Vs Smt. Gangamma

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1 - NC: 2025:KHC-D:12089-DB RFA No. 100560 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 15^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. 100560 OF 2023 (PAR)

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BETWEEN:

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RENUKA W/O. MANIKAPRABU TALAWAYI AGED ABOUT 48 YEARS, OCC: HOUSEWIFE, R/O. #91/AB, BENAK BYPASS ROAD, BEHIND KEB GRID, OLD HUBBALLI, HUBBALLI, DIST: DHARWAD-580024.

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…APPELLANT

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(BY SRI. SANTOSH B.MANE, ADVOCATE)

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AND:

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Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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SMT. GANGAMMA W/O. JAYARAJ GOLASAGI, AGED ABOUT 34 YEARS, OCC: HOUSEWIFE, R/O. C/O. SUNIL GODANNAVA, APMC, BEHIND ASHA HOTEL, KALAGHATAGI, DIST: DHARWAD-581204.

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SMT. ASHA W/O. LINGANGOUDA CHANNAPPAGOUDAR AGED ABOUT 37 YEARS,

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HC-KAR

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OCC: TEACHER, R/O. OPP. MINI VIDHANASOUDHA, NAVALGUND, DIST: DHARWAD-582208.

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SHRI. VEERAPPA S/O. BASAPPA SHIRAGUPPI, AGED ABOUT 80 YEARS, OCC: AGRICULTURE, R/O. BARADWAD, KUNDGOL TQ, DHARWAD DIST.-581195.

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SMT. MALA W/O. MANJUNATH GANI AGED ABOUT 43 YEARS, OCC: HOUSEWIFE, R/O. KERI ONI, KIRESUR HUBBALLI TQ, DHARWAD DIST-581200.

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SMT. GIRIJA W/I SHIVAPPA MYAGERI AGED ABOUT 46 YEARS, OCC: HOUSEWIFE, R/O. SHIVAPPA MYAGERI, DESANI BANA, BALIGER ONI, LAXMESHWAR, SHIRAHATTI TQ, DIST: GADAG-582116.

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MANIKPRABHU

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S/O. BASAVARAJ TALAWAYI, AGED ABOUT 63 YEARS, OCC: SERVICE AND AGRICULTURE, R/O. S.N 91/1A/B, BEHIND ELECTIC GRID, BYE –PASS ROAD, HUBLI, DIST: DHARWAD -5800024.

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3 - NC: 2025:KHC-D:12089-DB RFA No. 100560 of 2023

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HC-KAR

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POORNIMA ADOPTED

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D/O. BASAPPA MAJJIGUDDA, AFTER MARIAGE, CALLED AS POORNIMA W/O. PRAVEEN YALLUR AGED ABOUT 25 YEARS, OCC: HOUSEWIFE, R/O. DANDAPUR ROAD, NARAGUND, DIST: GADAG-582207.

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SMT. SHANTAMMA W/O. VEERAPA SHIRAGUPPI, SINCE DECEASED BY HIS LR’s APPELLANT AND RESPONDENTS NO.1 TO 5 WHO ARE ALREADY ON RECORD.

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…RESPONDENTS

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(BY SRI. NOTICE TO R1 TO R4 AND R7 ARE HELD SUFFICIENT; NOTICE TO R5 AND R6 ARE SERVED; R8-DECEASED (R1 TO R5 ARE LR’s OF DECEASED R8))

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.11.2021 PASSED IN O.S.NO.04/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS KUNDGOL, PARTLY DECREEING THE SUIT FILED FOR PARTITION.

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

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4 - NC: 2025:KHC-D:12089-DB RFA No. 100560 of 2023

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HC-KAR

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

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This appeal by the defendant No.2 in OS No.4/2019 is directed against the impugned judgment and decree dated 12.11.2021 passed by the Senior Civil Judge and JMFC, Kundgol (for short, ‘the Trial Court’), whereby the suit filed by the plaintiffs/respondent Nos.1 and 2 herein against the appellants and other defendants for partition and separate possession of their alleged share in the suit schedule properties was decreed by the Trial Court in favour of the plaintiffs against the defendants.

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Heard learned counsel for the appellant and perused the material on record.

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The respondents, having been served with notice of the appeal, are unrepresented and have not contested the appeal.

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HC-KAR

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A perusal of the material on record will indicate

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that the respondent Nos.1 and 2/plaintiffs instituted the aforesaid suit against the appellant/defendant No.2 for partition and separate possession of their alleged share in the suit schedule properties and for other reliefs.

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It is a matter of record that the plaintiff Nos.1 and 2 are the daughters of defendant No.1-Veerappa and defendant No.7-Smt. Shantamma. The remaining daughters of Veerappa and Shantamma are defendant Nos.2, 3 and 4. In the said suit, the appellant/defendant No.2 filed her written statement along with defendant Nos.3, 1 and 7 and contested the suit pursuant to which the Trial Court framed the following issues and additional issues:

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“ISSUES

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1. Whether plaintiffs prove that, suit properties are their ancestral properties?

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2. Whether the plaintiffs are entitled for 1/6th share in the suit properties ?

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3. Whether the defendant No.1 is entitled for share in the suit properties?

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HC-KAR

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4. Whether defendant No.4 is entitled for 1/6^th share in the suit properties?

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5. What Order or decree?

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Additional Issues

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6. Whether defendant No.2 and 3 proves that, Shantavva, Poornima, Manik Prabhu Talawai is necessary party to the suit?

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7. Whether defendant No.2 and 3 proves alleged private partition amongst the parties?”

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The plaintiff No.2 got herself examined as PW1

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and Ex.P.1 to P6 were marked on behalf of plaintiffs. The material on record discloses that neither the appellant/defendant No.2, nor the other defendants cross examined PW1, nor adduced any oral or documentary evidence, as a result of which, the Trial Court proceeded to pass the impugned judgment and decree. Aggrieved by the same, the appellant/defendant No.2 is before this Court, by way of present appeal.

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Learned counsel for the appellant would invite

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the attention of this Court to the order sheet maintained by the Trial Court in order to point out that subsequent to the

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HC-KAR

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matter being adjourned from 07.04.2021 to 25.05.2021, the learned counsel representing the appellant/defendant No.2 had expired on 08.05.2021, and his office colleagues did not inform the appellant/defendant No.2 about the case. As a result, the appellant/defendant No.2 was unaware of the proceedings and could neither cross examine PW1 nor lead any defence evidence, ultimately resulting in the impugned judgment and decree passed by the Trial Court. 8. It is submitted that the appellant has good case on merits and his failure to appear before the Trial Court, cross examine PW1, and adduce defence evidence was due to bona fide reasons, unavoidable circumstances, and sufficient cause and as such, it is just and necessary that the impugned judgment and decree passed by the Trial Court be set aside, and the matter be remitted back to the Trial Court for reconsideration afresh in accordance with law.

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8 - NC: 2025:KHC-D:12089-DB RFA No. 100560 of 2023

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HC-KAR

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We have carefully perused the material on record

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and considered the submission made on behalf of the appellant.

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A perusal of the order sheet maintained by the Trial Court will indicate that the matter was posted on 07.04.2021 and adjourned to 25.05.2021 for the cross examination of PW1. However, subsequently, neither PW1 nor PW2 were cross examined by the appellant, and vide judgment and decree dated 12.11.2021, the Trial Court proceeded to decree the suit in favour of the plaintiffs.

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In this context, apart from assailing the impugned judgment and decree on various grounds relating to its merits, the learned counsel for the appellant specifically contended that due to the demise of the counsel representing the appellant/defendant No.2 on 08.05.2021, the appellant being unaware of the said demise, was unable to engage another counsel in time. It is also pertinent to note that the dispute involves proprietary and possessory rights over immovable properties in the suit and as such, by

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9 - NC: 2025:KHC-D:12089-DB RFA No. 100560 of 2023

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HC-KAR

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adopting a justice oriented approach, we are of the view

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that an opportunity should be granted to the appellant.

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Accordingly, without expressing any opinion on the merits / demerits of the rival contentions, we deem it appropriate to set aside the impugned judgment and decree

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and remit the matter to the Trial Court for reconsideration in accordance with law.

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