Karnataka High Court
Sri. Yallappa S/O Ningappa Gujjanavar vs Smt. Paravva W/O Hanumantappa ... on 23 June, 2025
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RFA No. 100347 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF JUNE, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.100347 OF 2024 (PAR/POS)
BETWEEN:
1. SRI. YALLAPPA
S/O. NINGAPPA GUJJANAVAR,
AGE: 75 YEARS, OCC. AGRICULTURE,
R/O. TEGUR VILLAGE,
TQ. AND DIST. DHARWAD-580011.
2. SMT. SIDDAVVA
D/O. YALLAPPA GUJJANAVAR,
AGE: 49 YEARS, OCC. HOUSEHOLD,
R/O. TEGUR VILLAGE,
Digitally signed
TQ. AND DIST. DHARWAD-580011.
by
YASHAVANT
NARAYANKAR
Location: HIGH
COURT OF
YASHAVANT KARNATAKA
NARAYANKAR DHARWAD
BENCH
3. SRI. ANAND
DHARWAD
Date:
2025.06.27
10:52:31
+0530
S/O. YALLAPPA GUJJANAVAR,
AGE: 47 YEARS, OCC. AGRICULTURE,
R/O. TEGUR VILLAGE,
TQ. AND DIST. DHARWAD-580011.
4. SRI. KAREPPA
S/O. YALLAPPA GUJJANAVAR,
AGE: 45 YEARS, OCC. AGRICULTURE,
R/O. TEGUR VILLAGE,
TQ. AND DIST. DHARWAD-580011.
5. SRI. IRAPPA
S/O. YALLAPPA GUJJANAVAR,
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RFA No. 100347 of 2024
HC-KAR
AGE: 43 YEARS, OCC. AGRICULTURE,
R/O. TEGUR VILLAGE,
TQ. AND DIST. DHARWAD-580011.
6. SRI. SHIVAPPA
S/O. YALLAPPA GUJJANAVAR,
AGE: 39 YEARS, OCC. AGRICULTURE,
R/O. TEGUR VILLAGE,
TQ. AND DIST. DHARWAD-580011.
...APPELLANTS
(BY SRI. P.R. BENTUR, ADVOCATE)
AND:
SMT. PARAVVA
W/O. HANUMANTAPPA AMMINABHAVI,
(BEFORE MARIAGE PARAVVA
D/O. NINGAPPA GUJJANAVAR)
AGE: 79 YEARS, OCC. AGRICULTURE,
R/O. H.NO. 113, JANATA PLOT ONI,
TEGUR ONI, HOSA TEGUR VILLAGE,
TQ. AND DIST. DHARWAD-580011.
...RESPONDENT
(BY SRI. R.H. ANGADI, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
02.04.2024 PASSED BY THE LEARNED III ADDITIONAL SENIOR
CIVIL JUDGE AND CJM, DHARWAD IN O.S.NO.149/2019 AND
CONSEQUENTLY DISMISSED THE SUIT OF THE PLAINTIFF AND
CALL FOR THE RECORDS OF THE SUIT.
THIS APPEAL, COMING ON FOR FURTHER ORDERS THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
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RFA No. 100347 of 2024
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)
The defendants 1 to 6 in O.S.No.149/2019 on the file
of the III-Additional Senior Civil Judge and CJM, Dharwad1
have filed this appeal challenging the judgment and decree
dated 02.04.2024 passed therein by which it as declared that
the plaintiff is entitled to half share in the suit schedule
properties.
2. For the sake of convenience and easy
understanding, the parties shall henceforth be referred to as
they were arrayed before the Trial Court.
3. The suit in O.S.No.149/2019 was filed for
partition and separate possession of an agricultural land and
three house properties. The plaintiff claimed that Yamanavva
was her maternal grandmother, who had two daughters viz.,
Gujavva and Rajavva. She claimed that she and defendant
No.2 are the children of Gujjavva, while Rajavva and her
Hereinafter referred to as 'Trial Court'
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husband died issueless. She claimed that defendants 2 to 6
are the children of defendant No.1. She contended that her
maternal grandmother had acquired the suit item No.1 in the
year 1967 and the remaining properties were also her self-
acquired properties and that she died intestate on
14.02.1968. She claimed that she and defendant No.1 were
the nearest legal heirs to Smt.Gujjavva. She contended that
the defendant No.1 unlawfully got his name entered in the
revenue records on 22.04.1988 and denied the claim of the
plaintiff even though she had never given up her claim. She
alleged that defendant No.1 had parted with 02 acres of land
to her cultivation and that a year back, he had denied the
right, title and interest of the plaintiff and therefore, she was
advised to seek partition and separate possession of her
share in the suit schedule properties.
4. The defendants contested the suit and filed their
written statement. They inter alia contended that the suit
properties belonged to Yamanavva and after her death, were
succeeded by her two daughters viz., Rajavva and Gujjavva.
They contended that in the year 1988 itself Smt. Gujjavva
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and Rajavva had relinquished their right in favour of
defendant No.1 and submitted a Varadi to enter the name of
defendant No.1 in the revenue records. Accordingly, his
name was entered in the revenue records as per Mutation
Entry No.1739. Later, Smt.Gujjavva died in the year 1990
and Rajavva died in the year 1991. It was contended that
the plaintiff has no right, title or interest in the suit schedule
properties as she had allowed the revenue entries to remain
for more than 31 years. It was also contended that the
marriage of the plaintiff was performed at the expense of
defendant No.1 and that he had handed over gold and silver
ornaments and therefore, she was not entitled to any share
in the suit schedule properties. It was also contended that
the defendants inter se had partitioned the suit properties in
the year 2000 and revenue entries were accordingly made
out in their respective names. It was contended that the suit
properties were the 'Stree Dhan' properties of the mother of
defendant No.1 and therefore, the plaintiff had no right, title
or interest to claim partition.
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5. Based on these contentions, the Trial Court
framed the following issues and additional issues:
ISSUES
1. Whether the plaintiff proves that suit properties
are ancestral properties of her and defendant
No.1?
2. Whether the plaintiff is entitled for the relief of
partition and separate possession of ½ share of
the suit properties as prayed?
3. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendants prove that the suit of
plaintiff is bad for non-joinder of necessary
parties?
2. Whether the defendants prove that the suit of
the plaintiff is barred by limitation and her right
is extinguished?"
6. The plaintiff was examined as PW1. She marked
Exs.P1 to P8. The defendant No.3 was examined as DW1 and
marked Exs.D1 to D12. However, despite granting sufficient
opportunities, the defendant No.3 did not turn up for cross-
examination and also did not address arguments. Therefore,
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the Trial Court, based on the oral and documentary
evidence, held that the plaintiff is entitled to an undivided
share in the suit schedule properties and consequently,
decreed the suit of the plaintiff and declared that she is
entitled for half share in the suit properties. Being aggrieved
by the said judgment and decree, the defendants have filed
this appeal.
7. The defendants have contended that the Trial
Court did not give sufficient opportunity to lead evidence.
They contended that the defendant No.1 was suffering from
serious health issues and that DW1 was taking care of
defendant No.1. As a result, DW1 could not appear before
the Trial Court to face the cross-examination. Besides this, it
is contended that as per the evidence of PW1, adduced
before the Trial Court, she was not entitled to any share and
that the Trial Court did not take note of this fact.
8. Learned counsel for the respondent-plaintiff, on
the other hand, contended that the defendants did not
dispute the fact that the plaintiff and defendant No.1 are the
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children of Gujjavva and therefore, the Trial Court rightly
decreed the suit and declared that the plaintiff is entitled to
half share in the suit schedule properties. He also contends
that the Trial Court had given enormous opportunities to
DW1 to present himself for cross-examination, but DW1
deliberately absented from the proceedings of the Trial
Court. Therefore, the Trial Court did not have any other
alternative than to decree the suit. Hence, prays for
dismissal of the appeal.
9. We have considered the submissions of the
learned counsel for the defendants and the learned counsel
for the plaintiff. The only point that arises for our
consideration in this appeal is:
"Whether the defendants deserve an opportunity
to participate in the proceedings by presenting
DW1 for cross-examination and whether the DW1
had sufficient reason for staying away from the
proceedings of the Trial Court?"
10. It appears that when the suit was filed in the year
2019, the defendant No.1 was 71 years old. It also appears
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that the evidence of DW1 was recorded on 12.12.2023.
Thereafter, certain applications were filed i.e. I.A.No.14, 15
and 16. The applications filed by the plaintiff in I.A.No.15
and 16 were allowed and the plaintiff was permitted to
amend the plaint and the case stood adjourned for filing of
an additional written statement. The additional written
statement was not filed and the suit was posted for cross-
examination of DW1 on 27.02.2024, 04.03.2024 and
06.03.2024. The evidence of DW1 was discarded on
06.03.2024 and the case was adjourned to 12.03.2024,
13.03.2024, 18.03.2024 and 20.03.2024. However, the
defendant No.3 did not take any steps to file application
before the Trial Court for recalling the stage of the suit and
to present himself for cross-examination. The advocate, who
represented the defendants, also retired from the case on
30.03.2024. The defendants have pleaded in the appeal that
DW1 was defending the suit and that he could not attend the
proceedings as he was taking care of defendant No.1. Having
regard to the age of defendant No.1, it is quite probable that
due to health issues of defendant No.1, the defendant No.3
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stayed away from the proceedings of the Court. There is no
reason why this contention of defendant No.3 should be
disbelieved. Therefore, we are of the opinion that DW1 was
prevented by sufficient cause in appearing before the Court
and presenting himself before the Trial Court for cross-
examination by the plaintiff.
11. Since, the defendants have come up with a
specific defence that the plaintiff was not entitled to a share
in the suit schedule properties as it was his mother's
property, where the plaintiff did not have any share, the
defendants had a formidable defence and therefore, an
opportunity deserves to be granted to the defendants to
contest the suit on merits by presenting DW1 for cross-
examination. However, this cannot be without compensating
the plaintiff for the loss of time and the opportunity as well
as the expenses incurred in pursuing the suit to its logical
end. Therefore, we hold that DW1 was prevented by
sufficient cause in presenting himself for cross-examination
and an opportunity deserves to be granted to him to present
himself before the Trial Court for cross-examination.
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Consequently, we answer the above point in favour of the
defendants and accordingly, the following order is passed.
ORDER
i) The appeal is allowed.
ii) The impugned judgment and decree dated
02.04.2024 passed by the Trial Court in
O.S.No.149/2019 is set aside and the suit
before the Trial Court is restored, however
subject to payment of cost of ₹50,000/-
payable by the defendants to the plaintiff on
the next date of hearing.
iii) It is made clear that DW1 shall present
himself for cross-examination before the Trial
Court on the date fixed for his appearance
and the plaintiff shall go on with the cross-
examination of DW1 without fail.
iv) It is made clear that if the defendants fail to
avail this opportunity, the Trial Court is at
liberty to proceed with the suit and decide it
in accordance with law.
v) The parties shall appear before the Trial
Court on 14.07.2025 at 11.00 a.m.
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vi) Further, the Trial Court is directed to dispose
of the suit within an outer limit of three
months from the date of conclusion of the
evidence.
SD/-
(R.NATARAJ)
JUDGE
SD/-
(RAJESH RAI K)
JUDGE
YAN
CT:PA
