The court held that failure to file a written statement after appearing constitutes an uncontested decree, justifying remand for fair trial.

ORAL JUDGMENT

Heard Sri. Sathisha D.J., learned counsel for the appellant. Respondents are served and unrepresented.

2. Plaintiff is the appellant in this Miscellaneous Second Appeal challenging the Order of remand passed by the First Appellate Court in R.A.No.53/2020 by judgement dated 09.08.2023 whereby the decree passed in O.S. No.191/2006 decreeing the suit of the plaintiff came to be set-aside and matter is remitted to the Trial Court for disposal in accordance with law.

3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under :

3.1 A suit came to be filed in O.S. No.191/2006 for partition and separate possession in respect of following immovable properties (hereinafter referred to as 'suit properties' for short):

SCHEDULE - 1 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama, Sy.No.40/5 measuring 18 A 8 G of land bounded on :

East - Land of Krishnakumar West - Land of Hanumegowda North - Land of Hanumegowda South - Land of Lakshmegowda SCHEDULE - 2 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama, Sy.No.43 measuring 3 A bounded on :

East - Land of Krishnakumar West - Shankabonder North - Land of Kumara South - Shanka Border SCHEDULE - 3 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama, Sy.No.147/2 extent 5 guntas of land bounded on:

East - Land of Krishnakumar West - Land of Umesha North - Land of Venkateshagowda South - Govt Road SCHEDULE - 4 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama, Sy.No.43, Khata No.112 extent 3A bounded on :

East - Land of Rangegowda West - Land of Thimmegowda North - Land of Kumara South - House of Abdul Mohammed &

Shanka Border SCHEDULE - 5 Hassan City, Hosaline Road, Property No.370, New Khata No.171, old Khata No.147, extent 50 x 30 house property and vacant land bounded on :

East - Conservancy West - Road North - Property of Krishna Kumar South - Nursing Home SCHEDULE - 6 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama bearing Sy.No.40/5 extent 1 acre bounded on :

East - Hanumegowda West - Javaregowda North - Manujegowda South - Hanumegowda SCHEDULE - 7 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama bearing Sy.No.40/5 extent 1 acre bounded on :

East - Road West - Hanumegowda North - Kumara South - Hanumegowda SCHEDULE - 8 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama bearing Sy.No.40/5 extent 1 acre bounded on :

East - Road West - Hanumegowda North - Manujegowda South - Rangegowda SCHEDULE - 9 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama bearing Sy.No.40/5 extent 1 acre bounded on :

East - Road West - Hanumegowda North - Kumara South - Road.

3.2 In the suit, it is contended that plaintiff and defendants No.2 to 7 sons and daughters of Late Hanumanthe Gowda and they constructed joint family. Defendants No.8 to 11 are the purchasers of suit schedule item numbers 6 to 9. When there was a demand by the plaintiff to grant the sale, the same was denied by the defendants and therefore, suit came to be filed.

4. Pursuant to suit summons, defendants No.2 to

5, 7, 8 and 11 appeared before the Trial Court but failed to file written statement.

5. Defendants No.1, 6, 9 and 10 did not even appear before the Court and therefore before Trial Court they were placed exparte.

6. As such, the Trial Court recorded the evidence of the plaintiff formally and after raising necessary points, decreed the suit of the plaintiff.

7. Being aggrieved by the same, defendants No.2 to 7 filed an appeal before the First Appellate Court in R.A.No.53/2020.

8. Learned Judge in the First Appellate Court after securing the records noted that, fair opportunity was not granted to file the written statement to contesting defendants, therefore, allowed the appeal and remitted t