Karnataka High Court

Ningappa vs Kamaladevi on 10 March, 2025

                                                    -1-
                                                               NC: 2025:KHC-D:4493
                                                               RSA No. 812 of 2013




                                   IN THE HIGH COURT OF KARNATAKA,
                                           DHARWAD BENCH
                                DATED THIS THE 10TH DAY OF MARCH, 2025
                                                BEFORE
                                 THE HON'BLE MR. JUSTICE E.S.INDIRESH
                             REGULAR SECOND APPEAL NO. 812 OF 2013 (PAR-)
                      BETWEEN:
                      1.   NINGAPPA S/O. BASETEPPA SURANAGI,
                           AGED ABOUT 70 YEARS,
                           R/O. HOSALLI, SAVANUR TALUK,
                           HAVERI DISTRICT-581110.

                      2.   BASETEPPA S/O. NINGAPPA SURANAGI,
                           AGED ABOUT 33 YEARS,
                           R/O. HOSALLI, SAVANUR TALUK,
                           HAVERI DISTRICT-581110.

                      3.   FAKIRAPPA S/O. NINGAPPA SURANAGI,
                           AGED ABOUT 29 YEARS,
                           R/O. HOSALLI, SAVANUR TALUK,
                           HAVERI DISTRICT-581110.
                                                                      ...APPELLANTS

Digitally signed by
                      (BY SRI. PRASHANT V. MOGALI, ADVOCATE)
ASHPAK
KASHIMSA
MALAGALADINNI
Location: HIGH
                      AND:
COURT OF
KARNATAKA
DHARWAD BENCH
                      KAMALADEVI,
Date: 2025.03.18
10:57:31 +0530        W/O. PARAPPA SURANAGI,
                      AGED ABOUT 53 YEARS,
                      OCCU: GOVERNMENT SERVICE,
                      C/O. YELLAPPA GOUDAR PATIL,
                      R/O. GUDIGERI,
                      KUNDAGOL TALUK,
                      DHARWAD DISTRICT-581110.
                                                                     ...RESPONDENT
                      (BY SRI. SOURAB A. SONDUR FOR SRI. K.L. PATIL & SRI. S.S.
                      BETURMATH, ADVOCATES)
                                  -2-
                                          NC: 2025:KHC-D:4493
                                         RSA No. 812 of 2013




      THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF

CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED

BY THE DISTRICT JUDGE, HAVERI, IN R.A.NO.28/2009 DATED

17.04.2010 MODIFYING THE JUDGMENT AND DECREE PASSED BY

CIVIL JUDGE (SR.DN) & CHIEF JUDICIAL MAGISTRATE AT HAVERI,

IN O.S. NO.6/2008 DATED 25.02.2009 IN THE INTEREST OF JUSTICE

AND EQUITY.


      THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:



CORAM:     THE HON'BLE MR. JUSTICE E.S.INDIRESH


                         ORAL JUDGMENT

1. This appeal is preferred by the defendants assailing the

Judgment and Decree dated 17.04.2010 in R.A.No.28/2009 on

the file of District Judge at Haveri, allowing the appeal and

confirming the Judgment and Decree in O.S.No.6/2008 dated

25.02.2009 on the file of Civil Judge (Sr.Dn.) and CJM, Haveri,

decreeing the suit of the plaintiff.

2. For the sake of convenience, parties are referred to as

per their rank before the Trial Court.

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3. It is the case of the plaintiff that the original propositus

Basetteppa Suranagi had three children namely Ningappa

(defendant No.1), Parappa (husband of plaintiff) and

Channabasappa (died issueless).

4. It is stated in the plaint that the suit schedule property is

the joint family property of husband of the plaintiff - Parappa

and defendant No.1 along with their father - Basetteppa

Suranagi and therefore the plaintiff has filed O.S.No.6/2008

seeking relief of partition and separate possession in respect of

the suit schedule property.

5. After issuance of notice, the respondent having refused to

accept the notice, was accordingly, placed ex-party. In order

to establish her case, plaintiff has examined herself as P.W.1

and one more witness as P.W.2 and produced 86 documents

and same were marked as Exs.P1 to P86. The Trial Court, after

considering the material on record, by its Judgment and Decree

dated 25.02.2009, decreed the suit in part holding that the

plaintiff is entitled for half share in the suit schedule property.

Feeling aggrieved by the same, the plaintiff herself has filed

appeal in R.A.No.28/2009, on the file of First Appellate Court

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and the respondents therein despite notice, did not turn up.

The First Appellate Court, after considering the material on

record, by its Judgment and Decree dated 17.04.2010,

disposed of the appeal. Feeling aggrieved by the same, the

defendants have preferred this appeal.

6. This Court, vide order dated 06.01.2022, formulated the

substantial questions of law as below:

" Whether the First Appellate Court was justified in

granting share to the plaintiff, when admittedly the

husband of the respondent/plaintiff namely Parappa

sold his share in favour of his brother i.e. appellant

No.1 under registered sale deed dated 22.05.1989? "

7. I have heard Sri. Prashanth V. Mogali, learned counsel for

the appellants/defendants and Sri. Sourab A. Sondur, learned

counsel for the respondent/plaintiff.

8. Sri. Prashanth V. Mogali, learned counsel for the

appellants contended that the impugned Judgment and Decree

passed by both the Courts below wherein the appellants herein

have been placed ex-parte and no opportunity has been

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extended to the defendants on record to contest the matter. It

is also contended by the learned counsel for the appellant that

there was a partition in the family of late Basetteppa Suranagi

i.e. plaintiff and defendants and thereafter the husband of the

plaintiff - Parappa had executed registered sale deed in favour

of the defendants in so far as the portion of the land which was

allotted to his favour and accordingly sought for interference by

this Court.

9. Per contra, learned counsel Sri. Sourab A. Sondur,

appearing for the respondent/plaintiff sought to justify the

impugned Judgment and Decree passed by the Court below and

contended that as the plaintiff is the wife of Parappa and the

suit schedule property is the joint family property of the father-

in-law of the plaintiff - Basetteppa Suranagi and defendants,

and therefore, submitted that the plaintiff is entitled for half

share in the joint family property and accordingly sought for

dismissal of the appeal. It is also argued that, apparently it is

difficult to understand whether the appeal is allowed or

dismissed by the First Appellate Court. Interestingly, over-

writing in the Judgment of the First Appellate Court makes it

doubtful.

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10. In the light of the submissions made by the learned

counsel for the parties and in order to understand the

relationship of the parties, the genealogy tree produced is

extracted below:

GENEALOGY

Baseteppa Suranagi

Propositus

Ningappa Parappa Channabasappa Applnt No.1/ Deft. No.1 Wife Dead issueless

Kamaladevi Respondent/Plaintiff

Baseteppa Fakirappa Applnt.No.2/ Applnt. No.3/ Deft.No.2 Deft.No.3

11. Perusal of the genealogy tree would indicate that the

original propositus - Basetteppa Suranagi (father of the

defendant No.1 and father-in-law of the plaintiff) had several

properties and he died leaving behind the plaintiff and

defendants and another son Channabasappa who died

NC: 2025:KHC-D:4493

issueless. In the backdrop of these aspects, I have carefully

examined the finding recorded by the Trial Court, wherein,

defendants have been placed ex-parte as they refused to

accept the summons and accordingly, the Trial Court has

decreed the suit holding that the plaintiff is entitled for half

share in the suit schedule properties. However, in so far as one

of the items of the suit schedule properties, the plaintiff has

filed R.A.No.28/2009. The operative portion of the Judgment of

the First Appellate Court reads as under:

' The appeal filed by the appellant is hereby allowed.

The judgment and decree *25.02.2009

dt.[30.11.2009] is hereby set aside.

Suit of the plaintiff is hereby decreed as prayed for.

The plaintiff is entitled for partition and separate

possession of half share in the entire suit schedule

properties."

Note: *Amendment carried out as per ord

dt.21.04.2012."

"Underlined by me"

12. After reading the operative portion of the Judgment and

Decree passed by the First Appellate Court, it is very doubtful

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to understand whether the First Appellate Court has decreed

the suit or dismissed the suit. It is also apparent that it is

difficult to understand whether the appeal is allowed or

dismissed by the First Appellate Court. Interestingly, over-

writing in the Judgment of the appeal makes it doubtful.

13. It is also to be noted that defendants in both the Courts

below have been placed ex-parte. In that view of the matter, as

there is no consideration by the First Appellate Court with

regard to answering the points for determination as required

under Order 41 Rule 31 of CPC and following the Judgment of

the Hon'ble Supreme Court in the case of SANTOSH HAZARI Vs.

PURUSHOTTAM TIWARI (DEAD) BY LRS, reported in (2001) 3

SCC 179, I feel that the learned Appellate Judge has

misconstrued the provision contained under Order XLI Rule 31

of CPC and has not understood the case properly. It appears

even the facts of the case are also not understood properly by

the Appellate Judge and rendered the Judgment erroneously

and it is difficult for this Court to understand whether the

appeal is dismissed or appeal is allowed by the First Appellate

Court.

NC: 2025:KHC-D:4493

14. In that view of the matter, since the appellants herein

have been placed ex-parte before both the Courts below and in

order to provide fair opportunity to both the parties, it is a fit

case to remand the matter to the Trial Court for fresh

consideration. Accordingly, without assigning any reasons in so

far as the substantial question of law is concerned, since the

doubt has been created before this Court with regard to

Judgment and Decree passed by both the Court below, I am of

the view that, it is a fit case to remand the matter to the Trial

Court for proper consideration.

15. Accordingly, the Trial Court is directed to consider the

substantial question of law framed by this Court on 06.01.2022

while framing / answering the issues in the suit.

16. Accordingly, the following:

ORDER

(1) The Regular Second Appeal is allowed.

(2) The Judgment and Decree dated 17.04.2010 in

R.A.No.28/2002 on the file of the District Judge at

Haveri is hereby set aside and the Judgment and

Decree dated 25.02.2009 in O.S.No.6/2008 on the file