Karnataka High Court
Renuka W/O Manikaprabu vs Smt. Gangamma on 15 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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RFA No. 100560 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 15TH DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100560 OF 2023 (PAR)
BETWEEN:
RENUKA W/O. MANIKAPRABU TALAWAYI
AGED ABOUT 48 YEARS, OCC: HOUSEWIFE,
R/O. #91/AB, BENAK BYPASS ROAD,
BEHIND KEB GRID, OLD HUBBALLI,
HUBBALLI, DIST: DHARWAD-580024.
...APPELLANT
(BY SRI. SANTOSH B.MANE, ADVOCATE)
AND:
Digitally signed
by SAMREEN
AYUB 1. SMT. GANGAMMA
DESHNUR
Location: HIGH W/O. JAYARAJ GOLASAGI,
COURT OF
KARNATAKA AGED ABOUT 34 YEARS,
DHARWAD
BENCH OCC: HOUSEWIFE,
R/O. C/O. SUNIL GODANNAVA,
APMC, BEHIND ASHA HOTEL,
KALAGHATAGI,
DIST: DHARWAD-581204.
2. SMT. ASHA W/O. LINGANGOUDA
CHANNAPPAGOUDAR
AGED ABOUT 37 YEARS,
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OCC: TEACHER,
R/O. OPP. MINI VIDHANASOUDHA,
NAVALGUND, DIST: DHARWAD-582208.
3. SHRI. VEERAPPA
S/O. BASAPPA SHIRAGUPPI,
AGED ABOUT 80 YEARS,
OCC: AGRICULTURE,
R/O. BARADWAD, KUNDGOL TQ,
DHARWAD DIST.-581195.
4. SMT. MALA W/O. MANJUNATH GANI
AGED ABOUT 43 YEARS,
OCC: HOUSEWIFE,
R/O. KERI ONI,
KIRESUR HUBBALLI TQ,
DHARWAD DIST-581200.
5. SMT. GIRIJA W/I SHIVAPPA MYAGERI
AGED ABOUT 46 YEARS,
OCC: HOUSEWIFE,
R/O. SHIVAPPA MYAGERI,
DESANI BANA, BALIGER ONI,
LAXMESHWAR, SHIRAHATTI TQ,
DIST: GADAG-582116.
6. MANIKPRABHU
S/O. BASAVARAJ TALAWAYI,
AGED ABOUT 63 YEARS,
OCC: SERVICE AND AGRICULTURE,
R/O. S.N 91/1A/B, BEHIND
ELECTIC GRID, BYE -PASS ROAD,
HUBLI, DIST: DHARWAD -5800024.
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RFA No. 100560 of 2023
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7. POORNIMA ADOPTED
D/O. BASAPPA MAJJIGUDDA,
AFTER MARIAGE, CALLED AS
POORNIMA W/O. PRAVEEN YALLUR
AGED ABOUT 25 YEARS,
OCC: HOUSEWIFE,
R/O. DANDAPUR ROAD, NARAGUND,
DIST: GADAG-582207.
8. SMT. SHANTAMMA
W/O. VEERAPA SHIRAGUPPI,
SINCE DECEASED BY HIS LR's
APPELLANT AND RESPONDENTS NO.1 TO 5
WHO ARE ALREADY ON RECORD.
...RESPONDENTS
(BY SRI. NOTICE TO R1 TO R4 AND R7 ARE HELD SUFFICIENT;
NOTICE TO R5 AND R6 ARE SERVED;
R8-DECEASED (R1 TO R5 ARE LR's OF DECEASED R8))
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 12.11.2021 PASSED IN
O.S.NO.04/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS KUNDGOL, PARTLY
DECREEING THE SUIT FILED FOR PARTITION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA No. 100560 of 2023
HC-KAR
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)
This appeal by the defendant No.2 in OS No.4/2019 is
directed against the impugned judgment and decree dated
12.11.2021 passed by the Senior Civil Judge and JMFC,
Kundgol (for short, 'the Trial Court'), whereby the suit filed
by the plaintiffs/respondent Nos.1 and 2 herein against the
appellants and other defendants for partition and separate
possession of their alleged share in the suit schedule
properties was decreed by the Trial Court in favour of the
plaintiffs against the defendants.
2. Heard learned counsel for the appellant and
perused the material on record.
3. The respondents, having been served with notice
of the appeal, are unrepresented and have not contested
the appeal.
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4. A perusal of the material on record will indicate
that the respondent Nos.1 and 2/plaintiffs instituted the
aforesaid suit against the appellant/defendant No.2 for
partition and separate possession of their alleged share in
the suit schedule properties and for other reliefs.
5. It is a matter of record that the plaintiff Nos.1
and 2 are the daughters of defendant No.1-Veerappa and
defendant No.7-Smt. Shantamma. The remaining daughters
of Veerappa and Shantamma are defendant Nos.2, 3 and 4.
In the said suit, the appellant/defendant No.2 filed her
written statement along with defendant Nos.3, 1 and 7 and
contested the suit pursuant to which the Trial Court framed
the following issues and additional issues:
"ISSUES
1. Whether plaintiffs prove that, suit properties are
their ancestral properties?
2. Whether the plaintiffs are entitled for 1/6th share
in the suit properties ?
3. Whether the defendant No.1 is entitled for share in
the suit properties?
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4. Whether defendant No.4 is entitled for 1/6th share
in the suit properties?
5. What Order or decree?
Additional Issues
6. Whether defendant No.2 and 3 proves that,
Shantavva, Poornima, Manik Prabhu Talawai is
necessary party to the suit?
7. Whether defendant No.2 and 3 proves alleged
private partition amongst the parties?"
6. The plaintiff No.2 got herself examined as PW1
and Ex.P.1 to P6 were marked on behalf of plaintiffs. The
material on record discloses that neither the
appellant/defendant No.2, nor the other defendants cross
examined PW1, nor adduced any oral or documentary
evidence, as a result of which, the Trial Court proceeded to
pass the impugned judgment and decree. Aggrieved by the
same, the appellant/defendant No.2 is before this Court, by
way of present appeal.
7. Learned counsel for the appellant would invite
the attention of this Court to the order sheet maintained by
the Trial Court in order to point out that subsequent to the
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matter being adjourned from 07.04.2021 to 25.05.2021,
the learned counsel representing the appellant/defendant
No.2 had expired on 08.05.2021, and his office colleagues
did not inform the appellant/defendant No.2 about the case.
As a result, the appellant/defendant No.2 was unaware of
the proceedings and could neither cross examine PW1 nor
lead any defence evidence, ultimately resulting in the
impugned judgment and decree passed by the Trial Court.
8. It is submitted that the appellant has good case
on merits and his failure to appear before the Trial Court,
cross examine PW1, and adduce defence evidence was due
to bona fide reasons, unavoidable circumstances, and
sufficient cause and as such, it is just and necessary that
the impugned judgment and decree passed by the Trial
Court be set aside, and the matter be remitted back to the
Trial Court for reconsideration afresh in accordance with
law.
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9. We have carefully perused the material on record
and considered the submission made on behalf of the
appellant.
10. A perusal of the order sheet maintained by the
Trial Court will indicate that the matter was posted on
07.04.2021 and adjourned to 25.05.2021 for the cross
examination of PW1. However, subsequently, neither PW1
nor PW2 were cross examined by the appellant, and vide
judgment and decree dated 12.11.2021, the Trial Court
proceeded to decree the suit in favour of the plaintiffs.
11. In this context, apart from assailing the
impugned judgment and decree on various grounds relating
to its merits, the learned counsel for the appellant
specifically contended that due to the demise of the counsel
representing the appellant/defendant No.2 on 08.05.2021,
the appellant being unaware of the said demise, was unable
to engage another counsel in time. It is also pertinent to
note that the dispute involves proprietary and possessory
rights over immovable properties in the suit and as such, by
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adopting a justice oriented approach, we are of the view
that an opportunity should be granted to the appellant.
12. Accordingly, without expressing any opinion on
the merits / demerits of the rival contentions, we deem it
appropriate to set aside the impugned judgment and decree
and remit the matter to the Trial Court for reconsideration
in accordance with law.
13. In the result, we pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree
dated 12.11.2021 passed in OS No.4/2019 by
the Senior Civil Judge and JMFC, Kundgol, is
hereby set aside.
(iii) The appellant shall appear before
the Trial Court on 27.10.2025, without
awaiting further notice form the Trial Court.
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(iv) The Trial Court shall proceed further
and dispose of the suit afresh in accordance
with law.
(v) All rival contentions on all aspects of
the matter are kept open.
(vi) The Registry to transmit the records
back to the Trial Court forthwith.
All pending applications, if any, are disposed off
accordingly.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
SMM / Ct:vh
