Karnataka High Court
Sri D S Sadashiva vs Smt. Mangala on 22 September, 2025
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RFA No. 992 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 992 OF 2021 (PAR)
BETWEEN:
SRI. D.S SADASHIVA
S/O LATE D SHIVANNA,
AGED ABOUT 49 YEARS,
RESIDING AT NO.36/3,
SHIVAGIRI 5TH MAIN ROAD,
RAMACHANDRA AGHARAHARA
CHAMARAJAPET,
BANGALORE-560 018.
...APPELLANT
(BY SRI. SHIVARAJU T.M, ADVOCATE)
Digitally signed by
PANKAJA S
Location: HIGH AND:
COURT OF
KARNATAKA
1. SMT. MANGALA
D/O LATE D SHIVANNA,
AGED ABOUT 52 YEARS,
RESIDING AT NO.71,
GATTIGERE LAYOUT
BEML 3RD STAGE,
RAJARAGESHWARI NAGARA,
BENGALURU-560 098
2. SMT SHYLAJA
D/O LATE D SHIVANNA,
AGED ABOUT 52 YEARS,
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RFA No. 992 of 2021
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RESIDING AT NO.71,
GATTIGERE LAYOUT,
BEML 3RD STAGE,
RAJARAGESHWARI NAGARA,
BENGALURU-560 098
3. SRI. HARSHA
S/O SHIVAKUMAR,
AGED ABOUT 31 YEARS,
RESIDING AT CHIKKALALE VILLAGE,
KIKKERI HOBLI, K.R PET TALUK,
MANDYA DISTRICT.
4. SRI SANDESH
S/O SHIVAKUMAR,
AGED ABOUT 31 YEARS,
RESIDING AT CHIKKALALE VILLAGE,
KIKKERI HOBLI, K.R PET TALUK,
MANDYA DISTRICT.
...RESPONDENTS
(BY SRI. S. VIJAYAKUMAR, ADVOCATE FOR R1 & R2,
R3 & R4 - SERVED - UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 AND ORDER 41
RULE 1 OF THE CPC, AGAINST THE JUDGMENT AND DECREE
DATED 10.03.2020 PASSED IN OS.NO.2253/2017 ON THE FILE
OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE,
PARTLY DECREEING THE SUIT FOR PARTITION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE RAJESH RAI K
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RFA No. 992 of 2021
HC-KAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAJESH RAI K)
Defendant No.1 in O.S.No.2253/2017 is before this Court
in this appeal.
2. The learned XXVII Additional City Civil Judge,
Bangalore City (for brevity, "the Trial Court") has decreed the
suit in part in O.S.No.2253/2017 vide judgment dated
10.03.2020 in the following terms:
"The suit of the plaintiffs is hereby decreed
in part.
The plaintiffs are entitled to ½ share jointly
in respect of the suit schedule property by metes
and bounds and also entitled to the possession of
the same from the defendant no.1.
There shall be separate enquiry with regard
to the mesne profit under Order 20 Rule 18 of the
CPC."
3. For the sake of convenience, the parties are
referred to by their ranks before the Trial Court.
4. The abridged facts of the case are as under:
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The suit in O.S.No.2253/2017 was filed by the plaintiffs
against defendant Nos. 1 to 3 for the relief of partition and for a
direction to defendant No.1 to effect partition and to put the
plaintiffs in separate possession i.e., jointly 1/2 share in the
suit schedule property.
5. It is case of the plaintiffs that the plaintiffs and
defendant No.1 are children of Late D.Shivanna and Late
Sharadamma. They had three daughters (i.e., plaintiffs and
Late Komala) and one son (the defendant No.1). Defendants
No. 2 and 3 are children of late Komala.
6. It is the further case of the plaintiffs that the father
of plaintiffs late D. Shivanna was working in the Revenue
Department. He acquired the property bearing No.36/3, 5 th
Main road, 10th cross, Ramachandra Agrahara, Chamarajpet as
described in the schedule as per the registered Sale Deed dated
24.09.1970 from one Sandesh. As per the registered Sale
Deed, katha has been made out in his name and taxes have
been paid. The plaintiffs and defendants were successors to the
estate of deceased D.Shivanna. It is the further case of
plaintiffs that after ceremonial function of their mother
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Sharadamma, who died on 10.03.2017, they approached
defendant No.1 for partition and separate possession, but
defendant No.1 refused to effect partition of suit schedule
property which was succeeded by all the family members of
late D.Shivanna. The plaintiffs and defendant No.1 were
residing in the said property till 2012 along with their mother
Sharadamma. There are three portions, out of which, two
portions are let out for rents from 2013. The suit schedule
property is available for the family members. The plaintiffs are
therefore entitled for their share in the suit schedule property.
7. Further, it is submitted that defendant No.1 was
trying to alienate the property to third parties and thereby
acting detrimental to the interest of plaintiffs and trying to
transact family property behind their back and acting adverse
to plaintiffs' interest. Thus, the plaintiffs, after the death of
their mother on 10.03.2017, sought for 1/4th share each in suit
schedule property and on 21.03.2017 i.e., when defendant
No.1 refused to effect partition after ceremonial function, and
when the panchayat was held and defendant No.1 flatly refused
to effect partition, the plaintiffs, left with no other option,
preferred the suit.
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8. The summons was duly served to all the
defendants. Though defendant No.1 appeared through his
advocate, did not file written statement. Defendant No.2 has
not filed the written statement within statutory time. Defendant
No.3 did not appear and contest the suit and as such, he was
placed exparte. However, when the case was posted for
judgment, they filed an application under Section 151 of CPC to
receive the written statement which was dismissed by the Trial
Court. Against the said order, defendant No.1 preferred
W.P.No.40803/2018.
9. The Trial Court, thereafter, framed the following
issues:
(1) Whether plaintiff is entitled to the ½
share in respect of the schedule property
by metes and bounds?
(2) Whether the plaintiff is entitled to the
future mesne profits under Order 20 Rule
18 of the CPC?
(3) What order or decree?
10. In order to prove the case of the plaintiffs, plaintiff
No.2 got examined as PW.1 and got marked Exs.P1 to P6.
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11. The Trial Court, after considering the oral and
documentary evidence, has passed the judgment and decree as
aforesaid.
12. Being aggrieved by the said judgment and decree,
defendant No.1 is before this Court in this appeal. Defendant
Nos.2 and 3 i.e., respondents No.3 & 4 remained
unrepresented.
13. We have heard the learned counsel Sri.Shivaraju for
the appellant/defendant No.1 and the learned counsel
Sri.S.Vijayakumar appearing for the respondent Nos.1 and
2/plaintiffs and perused the records.
14. Learned counsel for the appellant/defendant No.1
contended that the Trial Court has erred while decreeing the
suit filed by the plaintiffs without extending an opportunity to
the defendants to contest the matter. Further, he contended
that defendant No.1 appeared before the Trial Court and filed
vakalath through his advocate on 30.05.2017 and sought time
to file written statement and thereafter, the matter was posted
on 11.07.2018. It is submitted that defendant No.1 filed I.A.
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under Section 148 of CPC seeking extension of time to file
written statement. Thereafter, the matter was posted on
07.09.2017 and 23.10.2017. As there was no representation
for defendant No.1, the written statement was taken as nil and
the matter was posted for judgment. Further, it is contended
that there was a Will executed by the father of defendant No.1
in his favour on 07.06.2005. The said aspect was pleaded in the
written statement by defendant No.1, which was not received
by the Trial Court. In such circumstance, the Trial Court ought
to have granted an opportunity to prove the Will executed by
his father by receiving the written statement.
15. Further, it is contended that the suit schedule
property was the self-acquired property of the father of
defendant No.1 and during his lifetime, the Will was executed in
favour of defendant no.1 and as such, decreeing the suit on the
ground that there were no contra evidence to disbelieve the
case of plaintiffs, that too, without the written statement of the
defendants, is untenable.
16. He also contended that the impugned decree has
far reaching civil consequences and since appellant/defendant
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No.1 has valuable defence in the suit, an opportunity deserves
to be granted to the appellant to contest the suit on merits. As
such, he prays to allow the appeal.
17. Per contra, learned counsel for respondents No.1
and 2/plaintiffs contended that though sufficient opportunity
has been provided to the defendants before the Trial Court to
file written statement, they failed to file the same and contest
the suit. Hence, the Trial Court proceeded without receiving the
written statement.
18. He also contended that the suit schedule property is
a joint family property and the plaintiffs and defendants, being
the successors to the estate of late Shivanna, the suit property
is available to the family members and that they are entitled to
1/4th share each in the suit schedule property. He further
contended that defendant No.1 was a fence sitter and had
intentionally kept quiet till the judgment of the suit and has
now come up with this appeal only to drag the final decree
proceedings. Accordingly, he prays to dismiss the appeal.
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19. Having considered the submissions made by the
learned counsel for the appellant/defendant No.1 and learned
counsel appearing for respondents No.1 and 2/plaintiffs, the
only point that arises for our consideration in this appeal is:
Whether defendant No.1 deserves to
be provided with an opportunity to contest
the suit on merits?
20. As could be gathered from records, defendant No.1
has failed to file the written statement within the statutory
time. Further, defendant No.1 also filed an I.A No.4 to accept
the written statement. However, the same had been dismissed
by the Trial Court. Against which, he also filed
W.P.No.40803/2018 and the learned Single Judge of this Court
passed an order reserving liberty to defendant No.1 to urge his
contention in the present appeal. As could be seen from the
written statement filed before this Court, it is averred by
defendant No.1 that his father executed a Will in his favour on
07.06.2005 in respect of the suit schedule property. The said
aspect has to be proved in a full fledged trial.
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21. Having regard to the aforesaid aspects and having
regard to the relief sought for in the suit, which had far
reaching consequences, we are of the view that
appellant/defendant No.1 deserves to be granted an
opportunity to contest the suit on merits. Thus, to balance
equities, we make an attempt to recompense the plaintiffs for
the difficulty faced, by awarding suitable costs.
22. Consequently, the point for determination raised by
this Court is answered in the 'affirmative'. Hence, the
following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment and decree dated
10.03.2020 passed by the Trial Court in
O.S.No.2253/2017 is set aside.
iii. The suit is remitted back to the Trial Court for
reconsideration in accordance with law, subject to
payment of costs of Rs.25,000/- each payable by
defendant No.1 to the plaintiffs before the Trial
Court on the date of appearance, failing which, the
Trial Court shall dispose off the suit on the same
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terms as mentioned in the judgment impugned in
this appeal.
iv. The parties shall appear before the Trial
Court on 03.11.2025 without expecting any
further notice from the Trial Court.
v. If the Trial Court considers that any fresh
issue arises, it may frame issues and thereafter
record the evidence of the parties.
vi. The Trial Court is directed to dispose off the
suit as early as possible and in accordance with
the Karnataka (Case Flow management in
Subordinate Courts) Rules, 2005.
Pending I.As., if any, also stand disposed of.
The Registry is directed to return the Trial Court Records
if any forthwith to the concerned Trial Court along with the
certified copy of this judgment.
SD/-
(ANU SIVARAMAN)
JUDGE
SD/-
(RAJESH RAI K)
JUDGE
