IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR R.F.A.NO.808 OF 2017(PAR) BETWEEN MR.OBANNA S/O LATE POOJARI HANUMAPPA AGED ABOUT 67 YEARS MADAKARIPURA CHITRADURGA-577 501 …APPELLANT (BY SRI.K.SHASHIKANTH PRASAD, ADVOCATE) AND 1 . MR DEVARAJ S/O LATE POOJARI HANUMAPPA AGED ABOUT 70 YEARS MADAKARIPURA CHITRADURGA-577 501 2 . MR.KUMARASWAMY S/O LATE THIPPESWAMY, AGED ABOUT 52 YEARS, DOOR NO.458, MADAKARIPURA, CHITRADURGA-577 501 3 . MRS.PREMA KUMARI W/O MR.OBAAIAH AGED ABOUT 42 YEARS DOOR NO.458, MADAKARIPURA CHITRADURGA-577 501.
4 . MR.JAYANNA S/O LATE THIPPESWAMY, AGED ABOUT 38 YEARS, AGRICULTURIST, GUYILAL VILLAGE, IMANGALA HOBLI, HIRIYUR-572 143 CHITRADURGA DISTRICT.
5 . KUMARI NAGAVENI S/O LATE THIPPESWAMY, AGED ABOUT 32 YEARS, GRAMA SAHAYAKI, GUYILAL VILLAGE, IMANGALA HOBLI, HIRIYUR-572 143 CHITRADURGA DISTRICT.
6 . MRS. THAYAMMA W/O MR.LINGAPPA R AGED ABOUT 64 YEARS, HOUSEHOLD, 4TH CROSS, DARJI COLONY, GOPALAPURA ROAD, CHITRADURGA-574 501 7 . MRS.VIJAYALAXMI W/O MR.MALLESHAPPA, AGED ABOUT 57 YEARS, HOUSEHOLD, 4TH CROSS, DARJI COLONY, GOPALAPURA ROAD, CHITRADURGA-574 501 8 . MR.JAYANNA S/O MR.BORAIAH, AGED ABOUT 47 YEARS, COOLIE WORK, 4TH CROSS, DARJI COLONY, GOPALAPURA ROAD, CHITRADURGA -574 501 9. MR.RAJANNA W/O MR.BORAIAH, AGED ABOUT 42 YEARS, COOLIE WORK, 4TH CROSS, DARJI COLONY, GOPALAPURA ROAD, CHITRADURGA-574 501 …RESPONDENTS (BY SRI PRABHUGOUD.B. TUMBIGI, ADVOCATE FOR R-1 TO R-7, VIDE ORDER DATED 11.03.2019 R-6, R-8, R-9 HELD SUFFICIENT) THIS APPEAL IS FILED UNDER SECTION 96 OF CPC., R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.10.2016 PASSED IN O.S.NO. 131/2015 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, CHITRADURGA, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal is by Defendant No.5-Obanna in the trial Court in the suit for partition and separate possession filed by Respondent No.1-plaintiff for his legitimate share in the suit schedule properties and for other reliefs.
2. The appellant-Defendant No.5 Obanna did not choose to contest the suit filed by Respondent No.1. Plaintiff examined himself as P.W.1 and Exs.P.1 to P.12 were marked on his behalf. None of the defendants chose to cross-examine the plaintiff or adduce any oral or documentary evidence. Accordingly, accepting the claim put forth by the plaintiff, the learned trial Judge decreed the suit in his favour.
3. The learned counsel appearing on behalf of Respondent No.1-plaintiff submits that having regard to the fact that the Judgment and Decree passed in his favour was an exparte decree and the same was challenged at the instance of Defendant No.5-appellant, the Respondent No.1-plaintiff had no objection to grant an opportunity to the appellant to contest the case and that the same may be decided on merits.
4. Accordingly, the appeal is hereby allowed. The impugned Judgment and Decree dated 19.10.2016 passed in O.S.No.131/2015 on the file of the I Additional Senior Civil Judge, Chitradurga, is hereby set aside. The matter is remitted back to the trial Court to dispose of the suit on merits after giving opportunity to all the parties to file their respective pleadings and also adduce oral and documentary evidence including cross-examining the P.W-1 and any other witnesses.
5. The counsel for the appellant as well as Respondents 1 to 7 submits that they have no objection for a direction to the Trial Court to dispose of the suit within the time-frame.
6. Both the counsels also submit that the parties would appear before the Trial Court on 04.11.2019 without further notice from the Trial Court. Both the counsels submit that they will co-operate with the learned trial Judge for expeditious disposal of the suit.
The parties are directed to appear before the Trial Court on 04.11.2019 without further notice.
Accordingly, the learned Trial Judge is directed to dispose of the suit within a period of four months from 04.11.2019.
In view of disposal of the appeal, I.A.No.2/2018 for stay does not survive for consideration and it is disposed of.
Sd/- JUDGE bnv*