The judgment establishes that defendants can be granted an opportunity to contest a suit on merits even after procedural lapses, contingent upon balancing hardships with imposed costs.

(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

Defendant Nos.1 and 2 in O.S. No.1119/2021 on the file of the Principal Senior Civil Judge and J.M.F.C., at Devanahalli, (hereinafter referred to as "the Trial Court") have filed this regular first appeal challenging the judgment and decree dated 23.05.2023 by which the suit in O.S.No.1119/2021 was decreed with costs and declared that the plaintiffs were jointly entitled for 5/7^th share in the suit schedule property and consequently, the Sale Agreement executed by late Narayanaswamy in favour of defendant No.3 on 15.10.2018 is not binding on the plaintiffs.

2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court.

3. The suit in O.S. No.1119/2021 was filed by the plaintiffs for relief of partition and separate possession for their joint 5/7^th share in the property bearing Sy.No.62/1, measuring 20G of Akkupete Village (hereinafter referred to as "the suit schedule property" for short) and for such other relief.

4. The plaintiffs contended that, one Poojappa S/o Marappa was the propositus of the joint family consisting of plaintiffs and defendant Nos.1 and 2. The said Poojappa was having two wives namely Akkayamma and Narayanamma. The first wife Akkayamma and Poojappa both died and the legal representatives of Smt. Akkayamma are the defendant Nos.1 and 2 and late Narayanaswamy. The plaintiff No.1 is the second wife of Poojappa and the plaintiff No.2 is the daughter-in-law of plaintiff No.1. Plaintiff Nos.3 to 5 are the children of plaintiff No.1 and late Poojappa. The suit schedule property was purchased by late Poojappa (who is the husband of plaintiff No.1, father-in-law of plaintiff No.2 and father of plaintiffs No.3 to 5) and they were in joint possession and enjoyment during the lifetime of late Poojappa. A portion of the property was sold by late Poojappa along with plaintiffs and defendant Nos.1 and 2 during his lifetime. Thereafter, the plaintiffs and defendant Nos.1 and 2 were in joint possession over the suit schedule property. There is no partition in the family of the plaintiffs and defendant Nos.1 and 2. The plaintiffs are illiterates and by taking advantage of their ignorance, the defendant Nos.1 and 2 and late Narayanaswamy have collusively obtained change of Khatha of the suit schedule property in their names and late Narayanaswamy had executed a Sale Agreement in favour of defendant No.3 on 15.10.2018 which was registered on 03.11.2018. The plaintiffs have not consented for the said Sale Agreement and therefore, by giving the date of cause of action as the date of Sale Agreement on 15.10.2018, the plaintiffs have filed the suit and they have prayed for the decree.

5. Defendant Nos.1 to 3 in the suit were served with summons and defendant Nos.1 and 2 appeared through their counsel. However, defendant No.3 was placed ex-parte. Defendant Nos.1 and 2 did not file any written statement. The Trial Court, thereafter, recorded evidence on the issues framed. Plaintiff No.5 - Gangaraju was examined as PW.1 and he marked 6 documents as Exs.P1 to P6. PW.1 was not cross- examined by any of the defendants. The Trial Court therefore after considering the oral and documentary evidence, held that the plaintiffs had proved that they were the lawful owners of the suit schedule property and consequently, declared them to be the owners. It further declared that the Sale Agreement dated 15.10.2018 executed by Late Narayanaswamy in favour of defendant No.3 was not binding on the plaintiffs. Further, allotted 5/7^th Share in the suit schedule property to the plaintiffs.

6. Being aggrieved by the said judgment and decree, defendant Nos.1 and 2 are before this Court in this appeal. 7. We have heard the learned Senior Counsel Sri Vighneshwar S.Shastri for the appellants and Sri M.Muni Krishna, learned counsel for respondents 1