C 1 IN THE HIGH COURT OF KARNATAKA CIRCUff BENCH AT GULBARGA DATED THIS THE 13Th DAY OF JUNE 2012 BEFORE THE HON’BLE MRS.JUSTICE B.S. INDRAKALA RF.A.NO. 1326 OF 2007 BETWEEN: Chandrakant 5/0 Annappa Parainard Age about 33 years 0cc: AgrIculture Rio Village Bedsoor Tq. Chittapur Dist. Gulbarga - 585 220 Appellant (By Sri. Krupa Sagar Patil, for Sri. Ashok Path. Advocate) AND: 1. Jagadevl W/o Naganna Police Biradar Age about 38 years 0cc: AgrIculture & Household 2. Gundamma Sb Late Annappa Paramani Age about 58 years 2 Both Rio village Bedsoor Tq. Chittapur, Dist. Gulbarga Pin code - 585 220 3. MsdftkarJun Sb Narsingrao Gajre Age: 42 years. 0cc: Agriculture Rio Mukrambha Tq. Chincholi — 585 212 Respondents (By Sri RS. Sidhapurkar. Adv. for R3. Sri. 5.5. Sajjanshetty. Adv. for R1& R2) This TWA Is ified U/S 96 of CPC, against the Judgment and decree dt:15.02.2007 passed in 0.S. No.21/2004 on the the of the Civil Judge (Sr. Dii.) Sedam, partly decreeing the suit for partition and separate possession. This appeal coming on for final hearing this day, the court delivered the following: JUDGMENT The let respondent in this appeal filed 0.5. No.21/2004 seeking partition and separate possession of half share in the properties mentioned in the schedule to the plaint. Subsequently. during the proceedings, she also got impleaded 3rd respondent herein who is said to be the purchaser of a N, 3 portion of the properties involved in the suit having purchased the same from the appellant herein. 2. For the sake of convenience, the parties herein are referred to by their respective rank as arrayed before the Trial Court in the original suit. 3. The relationship between the parties namely plaintiff and defendant No.2 being children of one Annappa Paramani and defendant No.1 who Is the wife of Annappa Paramani, Is admitted. 4. it is the contention of the plaintiff that her father and her uncle Shlvputrappa had partitioned their ancestral properties during the lifetime of her father and the properties mentioned in the schedule to the plaint fell to the share of her father Annappa Paramani. 5. Further it is contended by the plaintiff that her marriage took place In the year 1984-85. However, she inherited the properties of her father along with her brother. ‘V e 4 She has also contended that there was an unregistered settlement deed between herself on one side and her mother and brother on the other side, under which, she got half share in the properties mentioned In the schedule to the plaint; however, she was not put in possession of the same and hence, she ified the said suit seeking partition and separate possession of half share In the properties more fully described In the schedule by metes and bounds. 6. In the written statement filed by the 2nd defendant, the partition between the father of the plaintiff and his brother Is denied and so also the execution of unregistered settlement deed dated 30.05.1996 is denied. It Is specifically pleaded that whatever the properties mentioned In the schedule to the plaint belongs to the joint ownership of the said Shivputrappa and the father of the plaintiff and only the half of the said property is entitled to be partitioned between the heirs of Anneppa Paramani/the plaintiff and defendant Nos. I and 2 etc. Further it Is also pleaded that in the said S tub ii the IrI 1)0ht tilt plaInt!lf t’oiilc I’e ei.Ljtleu t ;:t SI’ lit ‘ id Ii 1. ifl’WC , Ciii I1,)it iii it It ii ru’ & LIe ii ill ill lie ii ‘inin d is I ‘. xunthied another wilu.. %S ab PW 2 On kwh rlcfen’-knis, tht- I tit’it-ndant got hrr-,eh tXcLflhih’( biat the 2 (IrhippLi nil wa’ iiiahle u’ put P:’h ‘th c’ 1 rd Ii Cf iit a’DWI idenc c i ti’ i - C Wi lit hilt ui. 1’ in, I lb t cc-ct t d pli’il dt ‘C itt tw’ udCcJL tbpc hUt i 1 r’- 3j tc .rI’’’ ‘LII Pi 1’ f 11.1 — I. ‘it’ll 1 I I C C. I j din I odtii.h I r1 Uu. sc’i I , 1 1. A. iii Ui.i am”. a . 2 C C. e I t 1 OCJ ia ltrat I 1,1. ‘c t-1) •l ‘ j I % I I 1 4 C d I 6 that he has nothing to cross-examine her, the Court without affording an opportunity to the appellant herein (who is the second defendant) to cross-examine the said witness and also without affording an opportunity to the appellant to adduce his evidence and put forth his case, proceeded to pass the impugned Judgment. 10. On perusal of the order sheet dated 07.02.2007 it is seen that after taking the affidavit of DW. 1 on record, the trial Judge by recording the submissions of the counsel for the plaintiff that there is no cross-examination, has deemed it fit to close the evidence and posted the matter for arguments. 11. The learned counsel for the appellant further submits that the appellant was bed ridden, he was unable to contact his advocate during that period and that he could not pursue the said aspect In the suit itself, meanwhile, the judgment was pronounced inimediately thereon. e 7 12. In the circumstances, considering the said submissions and also as could be seen from the evidence of DW. 1 the mother of the plaintiff which prima fade supports the case of the plaintiff, the appellant, who is aggrieved, will have to be given an opportunity as sought by the counsel for the appellant. 13. Further it is seen that even otherwise, admittedly, the said Annappa Paramani has left behind not only his two children, but also his wife and no share is allotted to her/the first defendant, though she is also entitled for a share in the entire property. In the foregoing circumstances, it is appropriate thai. the entire matter be remanded to the trial Court for fresh consideration by affording an opportunity to the appellant to put forth his evidence and to decide the case on merits as per law. Hence, the following: ORDER The appeal is allowed. The Judgment and decree dated 15.02.2007 passed in O.S. No.21/2004 on the file of the Civil S it L c irled It id .1 Ian a 1 I 1 r iii rdia ii iti I it ca 004 Ic r u t it tdçs h ivitlu I C ii 4 3 d