Karnataka High Court

Smt. Jagadevi vs Shruti D/O Shivakumar Kamalapur on 14 February, 2024

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                                             NC: 2024:KHC-K:1533
                                              RSA No. 200312 of 2018




                      IN THE HIGH COURT OF KARNATAKA,
                             KALABURAGI BENCH
                 DATED THIS THE 14TH DAY OF FEBRUARY, 2024
                                   BEFORE
                    THE HON'BLE MR. JUSTICE E.S.INDIRESH

             REGULAR SECOND APPEAL NO.200312 OF 2018 (PAR)

            BETWEEN:

            SMT. JAGADEVI
            W/O LATE SHARNAPPA KAMALAPUR,
            AGE: 62 YEARS, OCC: HOUSEHOLD,
            R/O H.NO.22-617, BASAV NAGAR,
            HUMNABAD, DIST: BIDAR.

                                                        ...APPELLANT

            (BY SRI. MAHANTESH PATIL, ADVOCATE)

            AND:

            1.   SHRUTI
                 D/O SHIVAKUMAR KAMALAPUR,
                 AGE: 06 YEARS, MINOR U/G OF
Digitally
                 HER NATURAL MOTHER
signed by        SWATI W/O SHIVAKUMAR KAMALAPUR,
LUCYGRACE
Location:        AGE: 28 YEARS, OCC: HOUSEHOLD,
HIGH             R/O H.NO.22-617,
COURT OF
KARNATAKA        BASAV NAGAR, HUMNABAD,
                 DIST: BIDAR-585 330.

            2.   SHIVAKUMAR
                 S/O LATE SHARANAPPA KAMALAPUR,
                 AGE: 42 YEARS, OCC: AGRI.,
                 R/O H.NO.22-617,
                 BASAV NAGAR, HUMNABAD,
                 DIST: BIDAR-585 330.

            3.   SHARNAPPA
                 S/O SHIVAKUMAR KAMALAPUR,
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                                    NC: 2024:KHC-K:1533
                                     RSA No. 200312 of 2018




     AGE: 10 YEARS,
     MINOR U/G OF HER NATURAL
     FATHER SHIVAKUMAR
     S/O LATE SHARNAPPA KAMALAPUR,
     AGE: 28 YEARS, OCC: HOUSEHOLD,
     R/O H.NO.22-617, BASAV NAGAR,
     HUMNABAD, DIST: BIDAR-585 330.

4.   AMBRESH
     S/O LATE SHARNAPPA KAMALAPUR,
     AGE: 27 YEARS, OCC: PVT.SERVICE,
     R/O H.NO.22-617, BASAV NAGAR,
     HUMNABAD, DIST: BIDAR-585 330.

5.   SMT. GUNDAMMA
     D/O LATE SHARNAPPA KAMALAPUR,
     AGE: 38 YEARS, OCC: HOUSEHOLD,
     R/O H.NO.22-617, BASAV NAGAR,
     HUMNABAD, DIST: BIDAR-585 330.

                                              ...RESPONDENTS

(SRI. SANJEEVKUMAR C. PATIL, ADVOCATE FOR R-1;
 R2 TO R5 SERVED - UNREPRESENTED)

      THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
13.07.2018 PASSED BY THE LEARNED III ADDL. SENIOR CIVIL
JUDGE, KALABURAGI IN R.A.NO.54/2017 AND SET ASIDE THE
JUDGMENT AND DECREE DATED 22.04.2017 PASSED BY THE
PRINCIPAL   CIVIL   JUDGE   &     JMFC   AT   KALABURAGI   IN
O.S.NO.107/2016.


      THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                     NC: 2024:KHC-K:1533
                                      RSA No. 200312 of 2018




                          JUDGMENT

This appeal is filed by the appellant/defendant No.3,

challenging the judgment and decree dated 13.07.2018

passed in R.A.No.54 of 2017 on the file of the III

Additional Senior Civil Judge at Kalaburagi (for short First

Appellate Court), dismissing the appeal and confirming the

judgment and decree dated 22.04.2017 passed in

O.S.No.107 of 2016 on the file of the Principal Civil Judge

and JMFC, Kalaburagi, decreeing the suit of the plaintiff in

part.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the trial Court.

3. The plaint averments are that, the plaintiff is

the daughter of defendant No.1 and defendant No.2 is the

step brother of the plaintiff. Defendant No.3 is the

grandmother of the plaintiff and defendant Nos.4 and 5

are the children of defendant No.3 (brother and sister of

defendant No.1). It is stated in the plaint that, the suit

NC: 2024:KHC-K:1533

schedule properties are the joint family properties of the

grandfather of the plaintiff and accordingly, the plaintiff

filed suit in O.S.No.107 of 2016, seeking partition and

separate possession in respect of the suit schedule

properties.

4. After service of summons, defendants entered

appearance, however, not filed the written statement.

5. On the basis of the plaint averments, the Trial

Court has formulated points for its consideration.

6. In order to establish their case, plaintiff has

examined herself as PW1 and got marked 39 documents

as Exs.P1 to P39. No evidence was adduced on behalf of

the defendants.

7. The Trial Court, after considering the material

on record, by its judgment and decree dated 22.04.2017,

decreed the suit of the plaintiff in part and being aggrieved

by the same, defendant No.3 has preferred Regular Appeal

NC: 2024:KHC-K:1533

in R.A.No.54 of 2017 before the First Appellate Court and

the said appeal was resisted by the plaintiff.

8. The First Appellate Court, after re-appreciating

the material on record, by its judgment and decree dated

13.07.2018, dismissed the appeal and confirmed the

judgment and decree passed by the Trial Court in

O.S.No.107 of 2016. Being aggrieved by the same,

defendant No.3 has preferred this Regular Second Appeal

under Section 100 of CPC.

9. This Court, by order dated 13.02.2024,

formulated the following substantial questions of law for

consideration:

"i) Whether both the Courts below have committed error in decreeing the suit without considering the reasons assigned by the defendant No.3 for having not filed written statement in OS No.107 of 2016 ?

ii. What order ?

10. Heard Sri Mahantesh Patil, learned counsel

appearing for the appellant and Sri Sanjeevkumar C. Patil,

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learned counsel appearing for respondent No.1/plaintiff

and perused the material on record.

11. Sri Mahantesh Patil, learned counsel appearing

for the appellant argued that, defendant No.3 has not filed

written statement before the Trial Court, as her grand

daughter committed suicide. Accordingly, he submitted

that, the finding recorded by the Trial Court, allotting

share in respect of the house property is not correct and

the same has to be rectified in this appeal.

12. Per contra, Sri Sanjeevkumar C. Patil, learned

counsel appearing for respondent No.1/plaintiff argued

that, fair opportunity has been extended to the defendants

and therefore, he sought to justify the impugned judgment

and decree passed by the Courts below.

13. On careful examination of the finding recorded

by both the Courts below, the relationship between the

parties is not disputed and Genealogical Tree is produced

as under:

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Smt Jagadevi (Df-3)

Shivakumar Ambresh Gundamma (Df-1) (Df-4) (Df-5)

Swati (II-Wife) Sharanappa (Df-2) Lrs of First Wife

Shruti (plaintiff) Lrs of Second Wife

14. Perusal of Genealogical Tree would indicate

that, defendant Nos.1, 4 and 5, are the children of

Sharanappa and defendant No.3. The plaintiff and

defendant No.2 are the children of defendant No.1. It is

the contention of defendant No.3 that, the suit has been

decreed by the Trial Court without affording an opportunity

to file written statement. In this regard, it is relevant to

cite the law declared by the Hon'ble Supreme Court in the

case of C.N. Ramappa Gowda vs. C.C. Chandregowda

(dead) by Lrs. and another reported in (2012) 5 SCC

265, wherein in the identical circumstances, the Hon'ble

Supreme Court remanded the matter to the Trial Court by

imposing cost. Taking into consideration that, it is the

NC: 2024:KHC-K:1533

specific case of defendant No.3 that, the house property is

the self-acquired property of defendant No.3 and further,

the father of the plaintiff (defendant No.1) himself has not

contested the matter, the reasons assigned by defendant

No.3 has to be accepted for not having contested the

matter by filing written statement.

15. Having followed the declaration of law made by

the Hon'ble Supreme Court in C.N. Ramappa Gowda's

case (supra), I am of the opinion that, it is a fit case to

remand the matter to the Trial Court under Order XLI Rule

23(A) of CPC, subject to imposing reasonable cost of

Rs.50,000/- to be payable by defendant No.3 to the

plaintiff. It is also made clear that, defendant No.3 and

other defendants, if chooses to file written statement, shall

file the same within two months from the date of their

appearance before the Trial Court and on their

appearance, the Trial Court shall conclude the entire

proceedings within one year, thereafter. In that view of

the matter, the substantial questions of law formulated

NC: 2024:KHC-K:1533

above favors the defendants and the impugned judgment

and decree passed by the Courts below are liable to be set

aside.

16. In the result, I pass the following:

ORDER:

i. Regular Second Appeal is allowed;

ii. The Judgment and decree dated 13.07.2018 in R.A. No.54 of 2017 on the file of III Additional Senior Civil Judge at Kalaburagi and the judgment and decree dated 22.04.2017 in O.S. No.107 of 2016 on the file of Principal Civil Judge and JMFC, Kalaburagi are set aside.

iii. The matter is remitted to the Trial Court for early disposal in terms of the observations made above, subject to the appellant/defendant No.3 paying cost of Rs.50,000/- to the plaintiff and an acknowledgment to be filed before the Trial Court.

iv. In the event, if defendant No.3/appellant fails to file acknowledgment for having paid the cost imposed above, same would disentitle the defendant No.3 to pursue the matter before the

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NC: 2024:KHC-K:1533

Trial Court and in that event, the impugned judgment and decree passed by the Courts below shall be held to be confirmed.

v. In view of remanding of the appeal, I.A. 1/2023 filed by the appellant for production of additional documents be transmitted to the Trial Court to consider the case of the parties.