Karnataka High Court
Sri. Appojappa vs Sri Narayanaswamy on 20 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:7087
RSA No. 1229 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.1229 OF 2023(PAR/POS)
BETWEEN:
SRI. APPOJAPPA,
S/O LATE NARASIMHAIAH,
AGED ABOUT 79 YEARS,
R/AT NANDI VILLAGE AND HOBLI,
CHIKKABALLAPURA TALUK - 562 103.
REPRESENTED BY GPA HOLDER,
SRI. N.A. GANGADHARA.
...APPELLANT
(BY SRI. SHIVARAJ N ARALI, ADVOCATE)
AND:
1. SRI. NARAYANASWAMY,
Digitally S/O LATE NARASIMHAIAH,
signed by AGED ABOUT 76 YEARS,
SUMA B N
R/AT NANDI VILLAGE AND HOBLI,
Location:
High Court CHIKKABALLAPURA TALUK - 562 103.
of Karnataka
2. SRI. KRISHNAPPA,
S/O. LATE NARASIMHAIAH,
AGED ABOUT 70 YEARS,
R/AT NANDI VILLAGE AND HOBLI,
CHIKKABALLAPURA TALUK - 562 103.
...RESPONDENTS
(BY SRI. NARAYANAPPA H.V., ADVOCATE FOR C/R1;
R2 - SERVED)
-2-
NC: 2024:KHC:7087
RSA No. 1229 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.04.2023
PASSED IN RA.NO. 75/2020 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 26.08.2020
PASSED IN O.S.NO.274/2017 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, AND CJM, CHIKKABALLAPUR.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the defendant No.1 aggrieved by
the judgment and order dated 18.04.2023 passed in
R.A.No.75/2020 on the file III Additional District and
Sessions Judge, Chikkaballapura, (for short 'the First
Appellate Court'), by which the First Appellate Court
reversed and set aside the judgment and decree dated
26.08.2020 passed in O.S.No.274/2017 on the file of the
Principal Senior Civil Judge, and CJM, Chikkaballapur, and
consequently decreed the suit of the plaintiff allotting 1/3rd
share.
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2. The aforesaid suit in O.S.No.274/2017 is filed by the
plaintiff seeking partition and separate possession in
respect of two items of suit schedule property. Records
reveal that the said suit was decreed on 01.06.2018
allotting 1/3rd share to the plaintiff on the premise that
defendants 1 and 2 had not contested in the suit. A
Miscellaneous Case No.25/2018 came to be filed by the
defendants, which was allowed providing an opportunity to
the defendants to file a written statement and contest the
suit and the said suit was restored by order dated
22.06.2019. However, despite providing such an
opportunity, though the defendants appeared when the
matter was listed on 16.08.2019 and 16.09.2019, did not
file the written statement. Accordingly, the matter was
heard ex-parte and the Trial Court taking note of the fact
that the plaintiff had not produced any evidence to
establish his contention of the suit property being joint
family property, except producing four documents at Ex.P1
to P4 viz., RTC and Mutation Register extracts, which
reflected the name of defendant No.1 in respect of the suit
schedule property, came to the conclusion that the same
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was not sufficient enough to hold that the property to be
the family property. Accordingly, dismissed the suit vide
judgment and decree dated 26.08.2020. Aggrieved by the
same, plaintiff preferred R.A.No.75/2020 before the First
Appellate Court. The First Appellate Court by the
impugned judgment and order allowed the appeal, setting
aside the judgment and decree passed by the trial Court
on the premise that despite providing an opportunity, the
defendants had neither filed written statement nor had
cross-examined the plaintiff's witness. The First Appellate
Court also opined that under the Hindu Law, the joint
family property is to be presumed unless proved and since
the defendants did not prove any partition amongst
themselves and the plaintiff, the plaintiff had proved the
property as the joint family property. Accordingly,
proceeded to pass the impugned judgment and order
awarding 1/3rd share in the plaint schedule property in
favor of the plaintiff. Aggrieved by the same, the 1st
defendant has preferred the present appeal.
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3. This appeal was admitted by order dated 01.02.2024
to consider the following substantial question of law:-
"Whether the first appellate court is justified in
reversing the finding and conclusion of the Trial
Court, though the plaintiff failed to prove the suit
schedule property to be the joint family property
and consequently decreed the suit relying upon
the revenue entries merely for the reason of
appellant/defendant not filing the written
statement ?"
4. There has been no representation on behalf of the
respondents.
5. Learned counsel for the appellant reiterating the
grounds urged in the memorandum of appeal, submitted
that when the Trial Court had dismissed the suit for want
of acceptable evidence by the plaintiff to prove the suit
property to be joint family property and in the absence of
any such material being produced, the First Appellate
Court ought not to have decreed the suit merely for the
reason that the defendant did not file written statement or
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cross-examine the plaintiff's witness. He submits that
though defendants were provided with an opportunity
before the trial Court, the matter was posted on
16.08.2019 and 16.09.2019, it was the period when the
COVID was surging. The appellant/defendant No.1 was
aged 80 years and was restricted of his mobility and was
confined to home. The appellant did not file written
statement or instruct the counsel for cross-examination.
It was during this period the trial Court proceeded with the
matter, though resulted in dismissal. Since the suit was
dismissed, there was nothing for the appellant to have
taken steps in the matter. It is his submission that
however, First Appellate Court has decreed the suit only
on the ground of defendant not filing the written
statement or cross-examining the plaintiff's witness.
Learned counsel refers to the judgment of the Division
Bench of this Court in the case of NIZAMUDDIN &
ANOTHER VS. SMT. AKHTRBEGAM AND OTHERS reported
in ILR 2021 KAR 3297 where in a similar situation
involved in the matter, the Division Bench of this Court
has held that adverse party is not debarred from cross-
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examining the plaintiff or the plaintiffs' witness, for the
reason of non-filing written statement. The Division Bench
of this Court has further proceeded to permit the
defendant therein to file written statement and to contest
the matter. Relying upon the same, learned counsel
submits that a similar opportunity be granted to the
appellant herein. Thus he submits that the appeal be
allowed and the matter be remanded the matter to the
Trial Court and provided an opportunity to the appellant to
contest the suit.
6. Heard and perused the records.
7. As rightly pointed out by the learned counsel for the
appellant, the age of the appellant appears to be around
80 years when the suit was filed. Though he was afforded
an opportunity by restoring the suit, the period at which
the evidence was recorded and judgment was pronounced
by the trial Court was around the time, when the COVID
19 Pandemic had affected the normal life. This Court can
take notice the fact that the appellant, who is aged about
80 years, must have been restricted from he moving
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around preventing him from either appearing before the
Court or contacting his counsel. That itself, may not be a
reason for the First Appellate Court to hold against them
and decree the suit as found in the present matter.
8. The Trial Court dismissed the suit for want of
evidence on behalf of the plaintiff. The plaintiff appears to
have filed an application before the First Appellate Court
under Order 41 Rule 27 of CPC seeking to produce only a
genealogical tree, which also appears to have been
rejected. The fact remains that neither of the parties have
brought on record any evidence with regard to the nature
and status of the property. This in the considered opinion
of the Court, would not amount to adjudication of the
matter, bringing an end to the litigation in the manner
known to law. Opportunity to the parties is not a mere
formality, it should be seen that their substantive rights
are effectively adjudicated, which is missing in the instant
proceeding. Substantial question of law is answered
accordingly.
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9. In that view of the matter, appeal succeeds. The
judgment and decree dated 18.04.2023 passed in
R.A.No.75/2020 by the First Appellate Court and the
judgment and decree dated 26.08.2020 passed in
O.S.No.274/2017 by the Trial Court are set aside. The
matter is remitted to the Trial Court. Defendants are
permitted to file written statement within 30 days from the
date of receipt of a certified copy of this order.
10. The Trial Court shall issue notice to the parties and
after affording an opportunity to both the parties shall
proceed in the matter in accordance with law. However,
the appellant shall pay cost of Rs.10,000/- to the plaintiff
before the trial Court.
Sd/-
JUDGE
NG List No.: 2 Sl No.: 9 CT:SNN
