Karnataka High Court
Mallappa Appanna Nagareddi vs Sagareppa Appanna Nagareddi on 22 November, 2023
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RSA No. 5190 of 2008
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.5190 OF 2008 (PAR)
BETWEEN
1. MALLAPPA APPANNA NAGAREDDI
SINCE DECEASED BY HIS LRS
a) SMT. KAMALAVVA
W/O. MALLAPPA NAGAREDDI,
SINCE DECEASED BY HER LRS
b) SHRI. YALLAPPA
S/O. MALLAPPA NAGAREDDI,
AGE ABOUT 48 YEARS, OCC:
AGRICULTURE,
R/O. SHIROL, TQ. MUDHOL,
Digitally
signed by DIST.BAGALKOT.
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL c) SMT. MALAVVA
PATTIHAL Date:
2023.11.23 D/O. MALLAPPA NAGAREDDI,
11:10:44
+0530 AGE ABOUT 40 YEARS, OCC:
HOUSEHOLD,
R/O. BENAKATTI, TQ. AND DIST.
BAGALKOT.
d) ASHOK
S/O. MALLAPPA NAGAREDDI,
AGE ABOUT 35 YEARS, OCC:
AGRICULTURE,
R/O. SHIROL, TQ. MUDHOL, DIST.
BAGALKOT.
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RSA No. 5190 of 2008
e) SMT. GEETA
W/O. SAGAREPPA NYAMAGOUDA,
AGE 30 YEARS, OCC: HOUSEHOLD,
R/O. MELLIGERI, TQ. MUDHOL,
DIST.BAGALKOT.
...APPELLANTS
(By Sri. K.B. NAVALGIMATH, ADVOCATE;
V/O DATED 31.07.2023 A1 (B-E) ARE TREATED
AS LR'S OF DECEASED A1(A))
AND
1. SAGAREPPA APPANNA NAGAREDDI,
AGE ABOUT: 65 YEARS, OCC: AGRICULTURE,
R/O. SHIROL, TQ: MUDHOL, DIST. BAGALKOT.
2. SMT. NEELAVVA W/O RAMAPPA KALLOLLI,
SINCE DECEASED BY HER LRS
(RESPONDENTS 1, 3 TO 7)
3. SMT. SHANTAVVA W/O BHIMAPPA PANCHAGAVI,
SINCE DECEASED BY HER LR
a) SMT. PREMA W/O. RAGHAPPA PATIL,
AGE ABOUT: 45 YEARS, OCC: HOUSEHOLD,
R/O. "AKSHATA KUTIRA", NEAR BOAT OFFICE,
HOUSING COLONY, BAGALKOT.
4. SMT. TAYAVVA W/O VENKAPPA NADUVINMANI,
AGE ABOUT: 58 YEARS, OCC: HOUSEHOLD,
R/O: HALAGALI, TQ: MUDHOL, DIST: BAGALKOT.
5. SMT. RACHAVVA W/O KADAPPA NAGAREDDI,
AGE ABOUT 55 YEARS,
R/O. SHIROL, TQ. MUDHOL, DIST: BAGALKOT.
(VIDE ORDER DATED 10.04.2015, APPEAL
AGAINST R5 IS DISMISSED)
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RSA No. 5190 of 2008
6. MAHESH S/O KADAPPA NAGAREDDI,
SINCE DECEASED BY HIS LRS
a) SMT. ANASUYA W/O/ MAHESH NAGAREDDI,
AGE ABOUT 40 YEARS, OCC: HOUSEHOLD,
b) KIRAN S/O. MAHESH NAGAREDDI,
AGE ABOUT: 25 YEARS, OCC: AGRICULTURE,
c) ARUN S/O. MAHESH NAGAREDDI,
AGE ABOUT: 24 YEARS, OCC: AGRICULTURE,
ALL R/O. SHIROL, TQ: MUDHOL,
DIST: BAGALKOT.
7. SIDDAROODHA S/O KADAPPA NAGAREDDI,
AGE ABOUT: 25 YEARS, OCC: AGRICULTURE,
R/O. SHIROL, TQ: MUDHOL, DIST. BAGALKOT.
...RESPONDENTS
(By Sri. M.C. HUKKERI FOR R1;
R2, R3, R6- DECEASED;
R1, R3-R7 ARE LR'S OF DECEASED R2;
R3(A) AND R4 HELD SUFFICIENT;
V/O DATED 10.04.2015 R5-DISMISSED;
R7, R6A, R6B, R6C - SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
AGAINST THE JUDGMENT AND DECREE DATED 25.07.2008
PASSED IN R.A.NO. 01/2005 ON THE FILE OF THE ADDL. CIVIL
JUDGE (SR.DN.) JAMKHANDI, SITTING AT MUDHOL, ALLOWING
THE APPEAL AND REVERSING THE JUDGMENT AND DECREE
DATED 17.04.2002 PASSED IN O.S.NO. 311/1997 IN THE FILE
OF THE PRL. CIVIL JUDGE (JR.DN.) MUDHOL.
THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 5190 of 2008
JUDGMENT
1. The appeal has been admitted by this Court on
02.02.2009 on the following substantial question of law:
"Whether the lower appellate Court was
right and justified in dismissing the suit filed by
the plaintiff - appellant herein though the
appeal filed by defendant No.2 against the
judgment and decree passed by the trial Court
decreeing the suit granting 1/7th share in the
suit schedule properties in favour of the plaintiff
had stood dismissed against the plaintiff -
appellant herein and as also against respondent
Nos.3 to 6 herein?
2. Learned counsel for the appellant and the
learned counsel for the respondents have been heard on
the substantial question of law framed by this Court, the
short question involved in this appeal is as to whether the
judgment and decree of the first appellate Court warrants
interference in view of the appeal being dismissed against
respondent No.1 (present appellant) and respondent
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Nos.3 & 6 for non taking steps by the appellant -
defendant No.2 in R.A. No.1/2005?
3. The brief facts of the case are that the plaintiff
one Mallappa Appanna Nagareddi filed a suit for partition
and separate possession in respect of the suit land bearing
R.S. No.127 measuring 20 acres 19 guntas situated at
Mallapur Village in Mudhol Taluka. The plaintiff contended
that the suit properties are the ancestral properties of the
plaintiff and defendants and they are in joint possession
and enjoyment of the suit schedule properties and the
plaintiff is having 1/7th share in the suit land.
4. Pursuant to the suit summons issued by the
trial Court, defendant Nos.1 & 2 and defendant Nos.6 to 8
tendered their appearance, but however did not choose to
file their written statement. Defendant Nos.3 & 5 were
placed exparte and the suit against defendant No.4 was
dismissed. Before the trial Court, plaintiff examined
himself as PW1 and got marked the document at Ex.P1.
The trial Court framed the issue and held that the plaintiff
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is entitled for partition in respect of the suit schedule
properties placing reliance on the material placed by the
plaintiff. The appeal was preferred before the first
appellate Court by defendant No.2. The first appellate
Court allowed the appeal filed by defendant No.2 and set
aside the judgment and decree of the trial Court and
dismissed the suit of the plaintiff. It is relevant to note
that respondent Nos.1 to 3 & 6 in R.A. No.1/2005 are the
plaintiff and defendant Nos.3 & 5. The order sheet
pertaining to R.A. No.1/2005 more particularly the order
dated 08.12.2006 evidences that the appellant -
defendant No.2 in R.A. No.1/2005 had not taken steps
against the contesting respondents and the appeal stood
dismissed against the said respondents for non taking
steps.
5. Pursuant to the order dated 08.12.2006, the
matter stood adjourned and finally by the impugned order,
the first appellate Court arrived at a conclusion that the
appeal of defendant No.2 needs to be allowed and set
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aside the judgment and decree of the trial Court, wherein
the suit of the plaintiff was decreed. The first appellate
Court while allowing the appeal of defendant No.2 has
mechanically passed an order without application of mind
and without considering that the appeal against the
contesting respondents, more particularly, the plaintiff -
appellant herein defendant No. 2 has not taken the steps
and the appeal has been dismissed for taking steps
against the said plaintiff. In the said fact, the contesting
respondents were not heard by the first appellate Court,
the entire exercise of the first appellate Court calls for
interference and the same suffers from perversity. The
substantial question of law framed by this Court is
answered in favour of the appellant holding that the first
appellate Court was not justified in dismissing the suit of
the plaintiff without appearance of the plaintiff in the
appeal as the appeal stood dismissed for non taking steps
against the contesting respondents. In the said
circumstances, this Court is of the considered view that
the matter requires to be reconsidered by the first
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appellate Court and the parties are to be relegated for
reconsideration of the matter afresh in accordance with
law and accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
allowed.
(ii) The impugned judgment and decree of the
first appellate Court dated 25.07.2008 in
R.A. No.1/2005 on the file of the Addl.
Civil Judge (Sr.Dn.), Jamkhandi sitting at
Mudhol is hereby set aside and the matter
is remitted back of the first appellate
Court for reconsideration afresh in
accordance with law after affording
sufficient and reasonable of opportunities
to the parties.
(iii) During the pendency of the appeal, the
appellant - plaintiff and the original
defendants have died and subsequently,
the L.Rs. of the appellant and the
respondents have been brought on record.
Under the said circumstances, the legal
representatives of the plaintiffs and the
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defendants to appear before the first
appellate Court on 18.12.2023 without
awaiting any further notice from the first
appellate Court.
(iv) In the event the appellate court finds any
notice to be required to be issued to
parties it shall do so in accordance with
law.
(v) All the contentions of the parties are kept
open.
(vi) Merits and demerits of the matter is not
considered by this court.
(vii) Since the appeal of the year 2005, the
Appellate Court to dispose of the appeal
as expeditiously as possible.
(viii) TCR to be transmitted forthwith.
Sd/-
JUDGE
VNP / CT: UMD
