Karnataka High Court
Sri. Malagouda Budyappa Naik @ Patil vs Smt.Iravva Siddappa Naik on 10 March, 2025
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RFA No. 100281 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 100281 OF 2020 (PAR/POS)
BETWEEN:
1. SRI. MALGODUA BUDYAPPA NAIK @ PATIL
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: BENCHINMARDI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE: 591307.
2. SRI. LAGAMANGOUDA BUDYAPPA NAIK @ PATIL
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: BENCHINMARDI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE: 591307.
Digitally signed
by
MALLIKARJUN
RUDRAYYA 3. SMT. GOURAVVA ASHOK BALANAVER
KALMATH
Location: HIGH
COURT OF
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
KARNATAKA
R/O: KULLUR, TQ: RAMDURG,
DIST: BELAGAVI, PIN CODE: 591307.
4. SMT. SUMAVVA ASHOK NAIK
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: CHIGATOLLI, POST: NALLANATTI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE: 591307.
5. SMT. VIJAVVA LAXMAN NAIK
AGE: 27 YEARS, OCC: HOUSEHOLD,
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RFA No. 100281 of 2020
R/O: HUNCHAL P.G.,TQ: GOKAK,
DIST: BELAGAVI, PIN CODE: 591307.
6. SMT. MAHADEVI SHIVARAJ NAIK
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O: VADEYARHATTI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE: 591307.
7. SRI.SEMANNA SALLAPPA GIGGI
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BENCHINMARDI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE: 591307.
...APPELLANTS
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
1. SMT. IRAVVA SIDDAPPA NAIK
(SINCE DEAD BY HIS LR'S)
1(A) SIDDAPPA AJJAPPA NAIK
AGE: 65 YEARS, OCC: AGRICULTURE,
1(B) BABU SIDDAPPA NAIK
AGE: 45 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O: TAVAG VILLAGE, TQ: GOKAK,
DIST: BELAGAVI 591101.
2. SRI. SEMANNA SALLAPPA GIGGI
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BENCHINMARDI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE: 591307.
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RFA No. 100281 of 2020
3. SRI. LAKKAPPA SALLAPPA GIGGI
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BENCHINMARDI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE: 591307.
4. SRI. SHEKAR S/O. YALLAPPA JOGYAGOL
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BENCHINMARDI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE: 591307.
...RESPONDENTS
(BY SRI. A.B. KONI, ADVOCATE FOR C/R1(A) AND 1(B);
NOTICE TO R2 AND R3 ARE SERVED;
NOTICE TO R4 IS DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 24.02.2020
PASSED IN O.S. NO.55/2016 ON THE FILE OF THE CIVIL
JUDGE, PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
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RFA No. 100281 of 2020
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The captioned appeal is by the defendants assailing
the preliminary judgment and decree dated 24.02.2020
drawn in O.S. No.65/2016 on the file of the Principal
Senior Civil Judge, Gokak [for brevity, 'the trial Court']
granting 1/6th share to the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. The family tree is as under:
Lakkappa (died)
Hanumantappa (died)
Uddavva Gouravva Savitri
1st wife (dead) nd
2 wife (dead) 3rd
wife (dead)
Gangavva Iravva
Daughter (dead) (plaintiff)
Buddeppa
Son (dead)
Malgouda Lagamngouda Gouravva Sumavva Mahadevi Vijavva
(deft.No.1) (deft.No.2) (deft.No.3) (deft.No.4) (Deft.No.6) (Deft.5)
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4. The plaintiff who is daughter born through
second wife Smt. Gouravva instituted a suit in O.S.
No.55/2016 contending that she constitutes undivided
joint Hindu family along with defendants and she has got
legitimate share in the property. Plaintiff alleges that the
propositus Sri. Lakkappa had one son by name Sri.
Hanumantappa. The said Sri. Hanumantappa during his
life time married Smt. Uddavva and in the said wedlock,
they were blessed with one daughter by name Smt.
Gangavva. Smt. Gangavva had a son by name Sri.
Buddeppa. The present defendants are the legal heirs of
said Sri. Buddeppa. The plaintiff further claims that Sri.
Hanumantappa married one Smt. Gouravva and the
plaintiff is born in the said wedlock. The present suit is
filed by the plaintiff alleging that defendant Nos.1 and 2
have illegally got their names mutated to all the suit
schedule properties without notifying the plaintiff and the
plaintiff when questioned the defendants, the defendants
contended that their father Sri. Buddeppa is adopted by
propositus Sri. Hanumantappa and therefore, plaintiff has
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no right in the suit schedule properties. The present suit is
filed alleging that defendant Nos.1 and 2 have denied the
plaintiff's share in the suit schedule properties and
therefore, present suit for partition and separate
possession came to be filed.
5. Upon receiving the summons, the defendants
entered an appearance and submitted a written statement.
They contested the suit, asserting that it was not
maintainable as the plaintiff had previously abandoned her
rights in the suit schedule properties in O.S. No.
113/2003. They further argued that the suit was barred by
limitation and sought its dismissal. The Trial Court framed
issues, placing the burden of proof on the defendants. To
substantiate their claims, the defendants presented oral
and documentary evidence, producing a total of 48
documents. However, the plaintiff did not testify. In the
absence of rebuttal evidence, the Trial Court held that
defendant Nos.1 to 6 failed to establish that the plaintiff
had transferred her rights in the suit schedule properties
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to their father, Sri Buddeppa. While answering issue No.2
in the negative, the Court also found that the defendants
could not prove the existence of a compromise recorded in
O.S. No.113/2003, thereby rejecting their claim that the
present suit was not maintainable. In addressing issue
Nos.1 and 2, the Trial Court effectively scrutinized the
validity of the alleged compromise in O.S. No.113/2003.
Upon examining the original memo marked as Ex.D-45
and its certified copy marked as Ex.D-14, the Court
concluded that Ex.D-14 was a fabricated document.
Furthermore, it determined that the plaintiff, Iravva's, LTM
[Left Thumb Impression] was identified by the counsel
who submitted the memo filed as Ex.D-14. However,
referring to the order sheet at Ex.D-12 in O.S.
No.113/2003, the Court noted that the LTM was not
officially recorded in the order sheet. Criticizing the
manner in which the Presiding Officer had dismissed the
previous suit as "not pressed," the Trial Court ultimately
decreed the present suit, granting the plaintiff a 1/6th
share in item Nos.1 to 7 of the suit schedule properties.
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Heard the learned counsel for the defendants and the
learned counsel appearing for the plaintiff. The points that
would arise for consideration in this appeal are:
i. Whether the finding of the trial Court
that defendant Nos.1 to 6 have failed to prove
the settlement arrived at between the original
plaintiff - Smt. Iravva and their father Sri.
Buddeppa in O.S. No.113/2003 and therefore,
the present suit filed in O.S. No.55/2016 is
maintainable, perverse and palpably erroneous
and contrary to the mandate provided under
Order XXIII Rule 3-A of the Code of Civil
Procedure?- AFFIRMATIVE
ii. Whether the trial Court had
jurisdiction to examine the validity of the
proceedings in O.S. No.113/2003 and therefore,
could have recorded finding regarding
genuineness of Ex.D-14, which is a memo
contrary to mandate provided under XXIII Rule
3-A of the Code of Civil Procedure?- NEGATIVE
6. We have given our anxious consideration to the
pleadings, oral and documentary evidence led in by the
defendants.
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7. The original plaintiff - Smt. Iravva has
instituted the present suit seeking relief of partition and
separate possession in O.S. No.55/2016. The defendants
on receipt of summons have tendered appearance and
have filed written statement. A specific contention is taken
by the defendants at paragraph Nos.15 to 19 indicating
that original the plaintiff - Smt. Iravva has received a sum
of Rs.40,000/- in cash from the defendants' father Sri.
Buddeppa and she has withdrew the same. In the light of
the stand taken by the defendants, we also deem it fit to
take cognizance of the disputed memo alleged to have
been filed by Smt. Iravva in O.S. No.113/2003. The
contents of the memo are extracted which reads as under:
ªÉĪÉÆÃ
FzÀgÀ°è ªÁ¢AiÀÄ PÉÆqÀĪÀ ªÉĪÉÆ PɼÀV£ÀAwzÉ.
1) £Á£ÀÄ F zÁªÉAiÀÄ£ÀÄß ¥Á®Ä ¨ÉÃr ¥ÀæwªÁ¢¬ÄgÀ «gÀÄzÀÞ
ªÀiÁrgÀÄvÉÛãÉ. DzÀgÉ PÉÆÃnð£À ºÉÆgÀUÉ £À£ÀUÉ »jAiÀÄgÀ ¸ÀªÀÄPÀëªÀÄ
£À£ÀUÉ §AUÁgÀ ªÀÄvÀÄÛ 40,000 (£Á®ªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬Ä)
gÉÆR ¥ÀæwªÁ¢ PÉÆnÖgÀÄvÁÛ£É. DzÀjAzÀ zÁªÉ ªÀiÁ½PÀvÀ£À°è £À£Àß
¥Á®Ä K£ÀÄ G½¢gÀĪÀÅ¢®è. ªÀÄvÀÄÛ ¸ÀzÀj d«ÄãÀÄUÀ½UÉ ¥ÀæwªÁ¢
¨sÀÆzÀå¥Á EvÀ£À PÀ¨ÁÓ ªÁ»ªÁnUÉà KAzÀÄ ºÀgÀPÉvÀ ªÀiÁqÀĪÀ¢¯Áè.
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CAvÁ E ¥ÀæPÁgÀ C¥À¸ÁvÀ DVzÀÄÝ £À£ÀUÉ PÉøÀ £ÀqɸÀ®Ä «ZÁgÀ
EgÀĪÀÅ¢®è. DzÀ PÁgÀt £À£Àß PÉøÀ£ÀÄß QvÀÄÛ ºÁPÀ¨ÉÃPÀÄ CAvÁ
«£ÀAw.
8. On closure examination of the memo alleged to
have been filed by the deceased plaintiff which is marked
as Ex.D-45 and the certified copy of this memo is market
at Ex.D-14, we are of the view that the trial Court
definitely lacked competency in commenting on the
manner in which compromise was recorded in the earlier
suit bearing O.S. No.113/2003.
9. The contention of the plaintiff's counsel that the
bar under Order XXIII Rule 3-A of the Code of Civil
Procedure is not applicable simply because the
compromise was not recorded in strict compliance with
Order XXIII Rule 3 of the Code of Civil Procedure is
untenable. The factual matrix of the case reveals that the
earlier suit, being O.S. No.113/2003, was also a suit for
partition and separate possession. The memo placed
before the Court clearly stated that the original plaintiff,
Smt. Iravva, had accepted a sum of Rs.40,000/- along
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with certain gold items in the presence of village elders,
and the dispute was amicably settled. In light of this
settlement, she withdrew the suit by filing a formal memo
on 06.04.2004. A careful examination of this memo
indicates that it constitutes a written instrument of
compromise as contemplated under Order XXIII Rule 3 of
the Code of Civil Procedure. The contents of the memo
explicitly declare that the matter was settled outside the
Court, which amounts to a valid compromise as recognized
by law. Therefore, the plaintiff's argument that the non-
recording of the compromise under Order XXIII Rule 3 of
the Code of Civil Procedure excludes the applicability of
Rule 3-A cannot be accepted.
10. If a party alleges that the memo of withdrawal
was obtained fraudulently and disputes the very institution
of the earlier suit in O.S. No.113/2003, the appropriate
legal remedy would be to approach the same Court that
entertained the memo and dismissed the suit as
withdrawn. When fraud is alleged in judicial proceedings,
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the Court before which such fraud is purported to have
occurred is competent to examine the matter and conduct
a detailed inquiry. In the present case, if the original
plaintiff, Smt. Iravva, contends that she never instituted
the earlier suit and that the memo of withdrawal was
fraudulently produced before the Court, she ought to have
challenged the same by filing an appropriate application
before the Court which allowed the withdrawal of O.S.
No.113/2003. The fact that she did not avail herself of this
remedy further strengthens the presumption that the
compromise was genuine. Consequently, the institution of
a fresh suit without challenging the earlier proceedings is
not maintainable in law.
11. The trial Court, however, failed to consider the
bar imposed by Order XXIII Rule 3-A of the Code of Civil
Procedure and instead proceeded with a full-fledged trial.
This approach was legally flawed. The burden of proof in
the trial was entirely placed on the defendants, despite the
serious allegations made by the plaintiff. The defendants,
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in response, presented substantial evidence, including the
original proceedings of O.S. No.113/2003 and the memo
allegedly signed by Smt. Iravva, which was marked as
Ex.D-45. Upon careful scrutiny of these documents, it
becomes evident that the defendants successfully
discharged their burden of proving that the plaintiff had
relinquished her claim by accepting Rs.40,000/- and gold
in the previous suit. The trial Court, instead of
acknowledging this crucial aspect, erroneously proceeded
with the case without considering the legal bar under
Order XXIII Rule 3-A of the Code of Civil Procedure.
12. Another significant aspect that cannot be
ignored is the conduct of the plaintiff in the present suit.
Despite making serious allegations of fraud and
impersonation, the plaintiff chose not to step into the
witness box to substantiate her claims. It is a well-settled
principle of law, consistently upheld by the Hon'ble
Supreme Court and various High Courts, that when a party
who has the burden of proof refuses to testify, an adverse
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inference must be drawn against them as per the
provisions of the Indian Evidence Act. The plaintiff's
reluctance to adduce any evidence or offer herself for
cross-examination raises serious doubts about the veracity
of her claims. The Court records, which carry presumptive
value, demonstrate that the earlier suit was indeed
instituted, and the settlement was voluntarily recorded in
the memo. The plaintiff's failure to challenge the earlier
proceedings before the appropriate forum and her
deliberate abstention from testifying in the present suit
reinforces the conclusion that her claims are baseless.
13. A critical flaw in the trial Court's approach was
the plaintiff's failure to step into the witness box to
substantiate her allegations. Despite making serious
claims of fraud and impersonation, the plaintiff never
subjected herself to cross-examination, thereby denying
the defendants a fair opportunity to test the veracity of
her claims regarding the memo executed in the earlier
suit. As per Section 114(g) of the Indian Evidence Act, an
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adverse inference should have been drawn against the
plaintiff for her deliberate avoidance of cross-examination.
The principle laid down by the Hon'ble Supreme Court and
various High Courts establishes that when a party refuses
to testify on a material issue, the presumption is that the
claim lacks credibility. The trial Court's failure to draw such
an inference significantly weakened the legitimacy of its
findings and contributed to an erroneous verdict.
14. In light of the statutory bar under Order XXIII
Rule 3-A of the Code of Civil Procedure, the judgment and
decree passed by the trial Court in the present suit are
palpably erroneous and legally unsustainable. Once a suit
is withdrawn upon acknowledgment that the dispute has
been settled out of Court and a written memo confirms the
receipt of Rs.40,000/- and gold in the presence of village
elders, a fresh suit challenging the settlement cannot be
entertained without specific pleadings and proof of fraud.
The plaintiff bore the burden of proving that the suit was
filed through misrepresentation and impersonation, which
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she failed to do. Such serious allegations, affecting both
the plaintiff and the Court, should have been adjudicated
before the very Court that allowed the withdrawal of O.S.
No.113/2003. The trial Court erred in placing the entire
burden of proof on the defendants while allowing the
plaintiff to evade cross-examination. The failure of the trial
Court to draw an adverse inference against the plaintiff
and its oversight in addressing the legal bar under Order
XXIII Rule 3-A of the Code of Civil Procedure render its
findings unsustainable. Consequently, the judgment and
decree of the trial Court are liable to be set aside.
However, the decision in the case of Krishan Mohan
Singh v. Sri Chand Gupta & Others1, relied upon by the
learned counsel for the defendants, does not have direct
applicability to the present case. Accordingly, point No.1 is
answered in the affirmative, and point No.2 is answered in
the negative.
AIR 1993 Delhi 365
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CONCLUSIONS
15. The trial Court erred in ignoring the statutory
bar under Order XXIII Rule 3-A of the Code of Civil
Procedure. The compromise recorded in the memo,
despite not being formally recorded under Order XXIII
Rule 3, constitutes a valid settlement. Consequently, a
fresh suit challenging the compromise was legally
untenable. The failure to recognize this legal bar rendered
the trial Court's approach fundamentally flawed.
16. The plaintiff's primary contention of fraud in the
earlier suit [O.S. No.113/2003] should have been raised
before the same Court that permitted the withdrawal of
the suit. The correct legal remedy was to challenge the
alleged fraud before that Court rather than instituting a
fresh suit. The plaintiff's failure to avail this remedy
reinforces the presumption that the compromise was
genuine and voluntarily entered into.
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17. The trial Court had no jurisdiction to scrutinize
the alleged fraud in the earlier suit, which was withdrawn
upon a written memo confirming settlement through
payment in cash and gold. Order XXIII Rule 3-A of the
Civil Procedure Code explicitly bars the institution of a
separate suit challenging the validity of a compromise
decree on grounds of fraud, coercion, or
misrepresentation. Instead, such allegations must be
raised before the Court that recorded the settlement. By
entertaining the fresh suit and revisiting issues already
concluded through a duly recorded compromise, the trial
Court acted beyond its jurisdiction. This not only
contravened statutory provisions but also undermined the
finality and sanctity of judicial proceedings. Its failure to
recognize this jurisdictional limitation further invalidates its
findings and necessitates reversal.
18. The trial Court incorrectly shifted the burden of
proof onto the defendants instead of requiring the plaintiff
to substantiate her allegations. The defendants provided
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substantial evidence, including the original suit
proceedings and the memo signed by Smt. Iravva
[marked as Ex.D-45], which confirmed the settlement.
This evidence established that the plaintiff had
relinquished her claims by accepting Rs.40,000/- and gold
items. The trial Court's failure to acknowledge this vital
evidence further contributed to the erroneous findings.
19. The plaintiff, despite making serious allegations
of fraud and impersonation, chose not to testify or subject
herself to cross-examination. As per well-settled legal
principles under the Indian Evidence Act, an adverse
inference should have been drawn against her for failing to
substantiate her claims. The trial Court overlooked this
crucial aspect, leading to an erroneous evaluation of the
case.
20. The Court records demonstrated that the earlier
suit was instituted and withdrawn through a written memo
confirming settlement. In the absence of specific pleadings
and evidence proving fraud, the presumption in favor of
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the genuineness of Court proceedings should have
prevailed. The trial Court's failure to give due weight to
these records further undermined the correctness of its
judgment.
21. The trial Court's reliance on extraneous factors,
while ignoring the legal bar under Order XXIII Rule 3-A of
the Code of Civil Procedure, led to an incorrect ruling.
Furthermore, while the defendants cited Krishan Mohan
Singh v. Sri Chand Gupta & Others, this decision did
not have direct applicability to the present case. The trial
Court failed to conduct a proper legal analysis, further
justifying the need for reversal.
22. The trial Court's judgment and decree are
legally unsustainable and must be set aside. The fresh suit
instituted by the plaintiff was barred by Order XXIII Rule
3-A of the Code of Civil Procedure, and the allegations of
fraud should have been raised before the Court that
entertained the original suit. The trial Court's failure to
draw adverse inferences against the plaintiff, misplaced
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burden of proof, and disregard for statutory provisions
warrant the reversal of its findings.
23. For the foregoing reasons, we pass the
following:
ORDER
[a] The appeal is allowed.
[b] The suit filed by the plaintiff in O.S. No.55/2016
is hereby dismissed. However, the dismissal will not come
in the way of the legal heirs of the plaintiff - Iravva to
pursue the remedy in the manner known to law.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
RSH / CT-CMU
