Defendant No.3 appealed against a trial court decree granting the plaintiff a 1/5th share in property allotted to their late father. The High Court found the documentary allotment evidence unrebutted, held that claims of insufficient opportunity belonged under Order IX Rule 13 CPC, and dismissed the appeal.
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NC: 2026:KHC:10388 RFA No. 1861 of 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 1861 OF 2023 (PAR/INJ)
BETWEEN:
…APPELLANT
(BY SRI. M.G. RAGHAVENDRA, ADVOCATE)
AND:
Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA
NC: 2026:KHC:10388 RFA No. 1861 of 2023
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ITTAMADU, BSK 3RD STAGE BANGALORE-560085 MOB-9886139190
SMT. USHA D/O LATE G. RAJENDRA AGED ABOUT 33 YEARS MOB-8123995653
SMT. KALAVATHI D/O LATE G. RAJENDRA AGED ABOUT 31 YEARS
BOTH ARE R/A NO.76 1ST MAIN, 3RD CROSS KALIDASA LAYOUT BANGALORE-560085 MOB -8148995653
…RESPONDENTS
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14.06.2023 PASSED IN OS NO.7484/2019 ON THE FILE OF V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
The captioned appeal is by defendant No.3 directed against the judgment and decree rendered in O.S.No.7484/2019, whereby the trial Court has decreed the suit and granted 1/5th share to the plaintiff in the suit schedule property.
The plaintiff instituted the present suit contending that the suit schedule property was originally allotted in
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favour of his father, late Govindaswamy, and that the same constituted the self-acquired property of the said Govindaswamy. It is the specific case of the plaintiff that upon the demise of his father, and subsequently the death of his mother, the plaintiff and defendants, being the legal heirs, jointly succeeded to the estate left behind by their parents. The grievance ventilated in the plaint is that despite repeated demands for amicable partition and separate possession, defendant Nos.1 and 4 failed and refused to effect division of the suit schedule property. The plaintiff has categorically pleaded that the cause of action arose on 24.11.2018 and again when the legal notice issued by him calling upon the defendants to effect partition was not complied with. In this backdrop, the suit was laid seeking partition and separate possession of his legitimate share in the suit schedule property.
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contesting the claim on merits is concerned. Defendant No.1, though filed written statement, denied the plaint averments in toto. However, it is significant to note that no specific or independent plea disputing the allotment in favour of Govindaswamy or setting up any exclusive title was taken. There was no plea of prior partition, relinquishment, or ouster.
NC: 2026:KHC:10388 RFA No. 1861 of 2023
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of the uncontroverted documentary material, the trial Court proceeded to decree the suit, granting the plaintiff 1/5th share in the suit schedule property.
the parties and on independent re-appreciation of the pleadings as well as the oral and documentary evidence on record, this Court is of the considered view that the following points arise for determination:
(i) Whether the judgment and decree of the trial Court granting 1/5th share to the plaintiff suffers from perversity or misappreciation of evidence?
(ii) What Order?
Finding on Point No.(i):
that the suit schedule property, namely a residential site, was originally allotted in favour of late Govindaswamy, the father of the plaintiff and defendants. The plaintiff has asserted his claim not on the basis of any independent
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title, but by way of succession as one of the Class–I heirs of the deceased Govindaswamy. In order to substantiate this foundational plea, the plaintiff has produced relevant documentary evidence demonstrating that the allotment
was made in favour of his father and that the property stood in his name. The documentary evidence has remained unchallenged and unrebutted. Once it is established that the property was the self-acquired property of Govindaswamy and that he died intestate, succession would open in accordance with Section 8 of the Hindu Succession Act, 1956, under which the plaintiff and defendants, being his children, would succeed simultaneously and in equal shares. The plaintiff has thus discharged the initial burden cast upon him to establish the nature of the property and his entitlement by inheritance.
denying the plaint averments, he did not step into the witness box to substantiate the denial or to displace the
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documentary evidence relied upon by the plaintiff. It is
well settled that mere pleading without proof does not amount to proof. In the present case, the denial in the written statement has remained a bald and
unsubstantiated denial. Defendant No.3, who is the present appellant, did not even file a written statement and allowed the proceedings to culminate without contest. In the appeal, defendant No.3 seeks to assail the decree primarily on the ground that he was not afforded sufficient opportunity to contest the matter and therefore, prays for remand. Such a contention, in the considered view of this Court, is wholly misconceived. If indeed defendant No.3 was aggrieved by having been placed ex parte or contends that sufficient opportunity was not granted, the appropriate remedy available to him was to invoke Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking to
set aside the ex parte decree by demonstrating sufficient cause.
NC: 2026:KHC:10388 RFA No. 1861 of 2023
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Civil Procedure, 1908, even against an ex parte decree, is maintainable; however, in such an appeal, the appellant must demonstrate that the decree is unsustainable on merits and that the plaintiff has failed to establish his case in accordance with law. The appellant cannot indirectly seek restoration of the suit or a fresh opportunity to contest by urging grounds that properly fall within the ambit of Order IX Rule 13 CPC.
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documentary evidence. It has also come on record that a residential house was subsequently constructed on the said site. In the absence of any plea of prior partition, exclusion, relinquishment, or adverse possession, and in the absence of rebuttal evidence, the trial Court was fully justified in decreeing the suit.
Negative .
Finding on Point No.(ii):
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ORDER
Appeal is devoid of merits and accordingly, stands
dismissed.
The pending interlocutory applications, if any, stands
disposed of.
Sd/- (SACHIN SHANKAR MAGADUM) JUDGE
CA List No.: 1 Sl No.: 13
2 issues framed by the court
Whether the trial court decree granting the plaintiff 1/5th share in the suit property suffered from perversity or misappreciation of evidence?
What order should follow on the appeal?
4 provisions across 2 enactments
Sri. G. Balaraju
Sri. G. Shekara
Sri. G. Krishnappa
Smt. P. Shanthi (since dead, by LRs Usha and Kalavathi)
Sri. G. Ramesh
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
