H N Veerabhadrappa Vs H N Shivamurthy

H N VEERABHADRAPPA S/O LATE NANJUDAPPA AGED ABOUT 63 YRS, AGRICULTURIST R/AT KADIVANAKATTE, KASABA HOBLI, HOSADURGA TALUK CHITRADURGA DISTRICT-577 527. DEAD BY LRS.

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(a) PARVATHAMMA

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W/O. LT. H.N.VEERABHADRAPPA AGED ABOUT 70 YEARS.

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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(b) VASANTHAKUMAR S/O.LT.H.N. VEERABHADRAPPA AGED ABOUT 46 YEARS.

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(c) OMPRIYA S/O. LT.H.N. VEERABHADRAPPA AGED ABOUT 44 YEARS.

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ALL ARE RESIDINT AT: KADIVANAKATTE VILLAGE, KASABA HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577517.

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&APPELLANTS

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(BY SRI. M T JAGAN MOHAN., ADVOCATE)

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2 - NC: 2026:KHC:15724 RSA No. 1737 of 2009

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HC-KAR

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AND:

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H N SHIVAMURTHY S/O LATE NANJUNDAPPA AGED ABOUT 61 YEARS AGRICULTURIST R/A. KADIVANAKATTE VILLAGE KASABA HOBLI, HOSADURGA TALUK CHITRADURGA DISTRICTPIN-5777527

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&RESPONDENT

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(BY SRI. ASHOK R KALYANASHETTY., ADVOCATE)

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THIS RSA IS FILED U/S 100 AND ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.8.2009 PASSED IN R.A.NO.47/2007 ON THE FILE OF THE PRL. DISTRICT JUDGE, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED3.8.2007 PASSED IN O.S.28/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN) HOLALKERE.

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

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

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ORAL JUDGMENT

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This appeal by the respondent in R.A.No.47/2007 on the file of the Principal District Judge, Chitradurga is directed against the impugned judgment and decree dated 13.08.2009, whereby the said appeal filed by the respondent-appellant in R.A.No.47/2007 was allowed by the first Appellate Court.

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3 - NC: 2026:KHC:15724 RSA No. 1737 of 2009

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HC-KAR

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Heard the learned counsel for the appellant and

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learned counsel for the respondent and perused the material on record.

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A perusal of the material on record will indicate that the respondent/plaintiff, H.N.Shivamurthy instituted a suit in O.S.28/2001 against the appellant/defendant for declaration of title, permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit was contested by the appellant/defendant. Pursuant to which, the trial Court framed the following issues.

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"1. Whether the plaintiff proves that he is the absolute owner and lawful possession of the suit schedule property as on the date of suit.?

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2. Whether the plaintiff proves the alleged interference by the defendant?

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3. Whether the defendant proves that the plaintiff is not entitled for relief as prayed as contended in para No.2 of his written statement?

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4. Whether the plaintiff is entitled for relief of declaration and injunction as prayed?

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5. What order and relief?

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The plaintiff examined himself as PW.1 and three

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witnesses as PW.2 and PW.4 and documentary evidence at

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4 - NC: 2026:KHC:15724 RSA No. 1737 of 2009

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HC-KAR

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Exs.P1 to P9 were marked. However, the appellant-defendant did not cross-examine the plaintiff or his witnesses nor adduced any defence evidence. Despite which, the trial Court proceeded to pass a judgment and decree dated 03.08.2007 dismissing the suit filed by the plaintiff. Aggrieved by the said judgment and decree passed by the trial Court, the respondent-plaintiff preferred an appeal in R.A.No.47/2007, which was allowed by the first Appellate Court vide impugned judgment and decree dated 13.08.2009, thereby decreeing the suit of the plaintiff against the appellant-defendant. Aggrieved by the judgment and decree passed by the first Appellate Court, the appellantdefendant is before this Court by way of the present appeal.

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On 12.06.2012, this Court framed the following

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substantial questions of law.

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"Heard the learned counsel for appellant as well as learned counsel for respondent.

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Substantial question of law that arises for consideration of this Court is as under:

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1. Whether the first Appellate Court was justified in decreeing the suit of respondent based on Ex.P7 - the unregistered partition deed ?

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5 - NC: 2026:KHC:15724 RSA No. 1737 of 2009

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HC-KAR

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2. Whether the First Appellate Court was justified in coming to a conclusion that appellant has relinquished his right in the schedule property based on the recital in Ex.P7, though it is unregistered partition deed?

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3. Whether the Khata can be changed only on affidavit?

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4. Whether the First Appellate Court was justified in decreeing the suit of the respondent though the appellant has not cross-examined the PW1 to PW4 and no evidence was lead from the respondent to prove his ownership over suit schedule property when it is suit for declaration?

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5. Whether the Court below is justified in casting the burden of proof on the respondent ?

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Admit.

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Learned counsel for the appellant is directed to file the paper book within four weeks.

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List this matter for final hearing after four weeks."

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A perusal of the material on record will indicate that

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though substantial questions of law No.1 to 3 and 5 were formulated/framed as per the merits/demerits of the rival contentions, substantial question of law No.4 framed deals with

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6 - NC: 2026:KHC:15724 RSA No. 1737 of 2009

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HC-KAR

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the inability and omission on the part of the appellant to crossexamine PW.1 to PW.4 and also adduce defence evidence.

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In this context, learned counsel for the appellant

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submits that the inability and omission on the part of the appellant to cross-examine PW.1 to PW.4 and to adduce defence evidence was due to bonafide reasons, unavoidable circumstances and sufficient cause and the impugned judgment and decree passed by the first Appellate Court as well as the judgment and decree passed by the trial Court may be set aside and the matter may be remitted back to the trial Court for reconsideration afresh in accordance with law.

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Per contra , learned counsel for the respondent would support the impugned judgment and submit that there is no merit in the appeal and the same is liable to be dismissed.

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A perusal of the substantial questions of law framed by this Court ( supra) will indicate that while substantial questions of law Nos.1, 2, 3 and 5 deal with the merits/demerits of the rival contentions, substantial question of law No.4 relates to the inability and omission on the part of the

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7 -

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NC: 2026:KHC:15724 RSA No. 1737 of 2009

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HC-KAR

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appellant to cross-examine PW.1 to PW.4 and also lead defence evidence in response to the claim of declaration of title and permanent injunction put forth by the respondent-plaintiff.

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It is a matter of record and an undisputed fact that the appellant did not cross-examine PW.1 to PW.4 nor did he adduce defence evidence and it is under that circumstance, the first Appellate Court proceeded to decree the suit by setting aside the judgment and decree passed by the trial Court.

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Under these circumstances, in the light of the specific assertion on the part of the appellant that his inability and omission to cross-examine PW.1 to PW.4 and also lead defence evidence and contest the suit after filing written statement was due to bonafide reasons, unavoidable circumstances and sufficient cause, without expressing any opinion on the merits/demerits of the rival contentions. I deem it just and appropriate to set aside the impugned judgment and decree dated 13.08.2009 in R.A.No.47/2007 as well as the judgment and decree dated 03.08.2007 in O.S.No.28/2001 and remit the matter back to the trial Court for reconsideration of

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8 - NC: 2026:KHC:15724 RSA No. 1737 of 2009

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HC-KAR

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O.S.No.28/2001 afresh in accordance with law within a stipulated time frame.

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In the result, the following:

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ORDER

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i) Appeal is hereby allowed .

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ii) Impugned judgment and decree dated 13.08.2009 passed in R.A.No.47/2007 by the Principal District Judge, Chitradurga as well as the judgment and decree dated 03.08.2007 passed in O.S.No.28/2001 by the Civil Judge (Sr.Dn.), Holalkere in Chitradurga are hereby set aside.

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iii) Matter is remitted back to the trial Court for reconsideration of O.S.No.28/2001 afresh in accordance with law.

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iv) Since the appellant expired during the pendency of the present appeal and his LRs have been brought on record, the trial Court shall permit the plaintiff to amend the cause title by showing the LRs of the sole appellant as the LRs of the sole defendant in the suit and file amended cause title on the date of

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9 - NC: 2026:KHC:15724 RSA No. 1737 of 2009

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HC-KAR

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appearance of the parties before the trial Court.

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v) Both LRs of the appellant (defendant) and respondent shall appear before the trial Court on 06.04.2026 without awaiting further notice from the trial Court.

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vi) Liberty is reserved in favour of the respondent to adduce further evidence in support of his claim.

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vii) After completion of further evidence of the respondent-plaintiff, the trial Court shall permit the appellant-defendant to cross-examine the plaintiff and all witnesses and also lead defence evidence and dispose of the suit within a period of six months from 06.04.2026.

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viii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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VM List No.: 1 Sl No.: 25

H N Veerabhadrappa v. H N Shivamurthy

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H N Veerabhadrappa v. H N Shivamurthy

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