Mr. Sathishchandra Nayak v. Mrs Shantha Nayak

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE MISCELLANEOUS SECOND APPEAL NO. 171 OF 2025 (RO) BETWEEN: MR. SATHISHCHANDRA NAYAK AGED ABOUT 76 YEARS, S/O. LATE VAMANA NAYAK, RESIDING AT SRI RAM, JEPPU, MARNAMI KATTE, MANGALURU-575 001. …APPELLANT (BY SRI.VISHWAS.N., FOR SRI. RAKESH KINI., ADVOCATE) AND:

¶1MRS SHANTHA NAYAK AGED ABOUT 81 YEARS, D/O. LATE VAMANA NAYAK, RESIDING AT MAGAPPA NAYAK, JEPPU, MAHAKALI PADPU, MANGALURU-575 002.

¶2MR. ARUN KUMAR.K. NAYAK, AGED ABOUT 73 YEARS, by SHARADAVANI B Location: High Court of Karnataka e -e2e-eeeee e e NC:(2026:KHC:16093 MSA(No.(171(of(2025 S/O,LATE,K.,KRISHNAN,NAYAK,,,

3., AMARANTH,NAYAK.,, AGED,ABOUT,63,YEARS,,, S/O,LATE,K.,KRISHNAN,NAYAK,,, NO.2,AND,3,ARE,R/AT,USHA,NAYAK,,, NEAR,JEPPU,POST,OFFICE,,JEPPU,,, MARNAMIKATTE,,, MANGALORE-,575001,

4., MR.,ASHOK,NAYAK,, AGED,ABOUT,70,YEARS,,, S/O,LATE,K.,KRISHNAN,NAYAK,,, RESIDING,AT,DOOR,NO.21-4-487,,, BOLAR,,MANGALURU-,575001,

5., SMT.,SANDHYA.A.,RAO,, AGED,ABOUT,65,YEARS,,, RESIDING,AT,SHRI,KRIPA,TOURIST,HOME,,, NEAR,R.T.O.,,STATION,ROAD,,, AURNGABAD-,431001,

6., HARIDAS,NAYAK,, AGED,ABOUT,80,YEARS,,, H/O,LATE,USHA,NAYAK,,,

7., HARSHA,NAYAK,, AGED,ABOUT,44,YEARS,,, S/O,LATE,USHA,NAYAK,,,

8., AISHWARYA,PRABHU,, AGED,ABOUT,42,YEARS,,, S/O,LATE,USHA,NAYAK,,, NO.6,TO,8,ARE,RESIDING,AT,, e -e3e-eeeee e e NC:(2026:KHC:16093 MSA(No.(171(of(2025 LAXITON,MANNER,,FLAT,NO.34,,, S.,MATHIAS,ROAD,,HIGHLAND,,, MANGALORE-,575001, M.,RATNAKAR,NAYAK,,(SINCE,DEAD),, DEAD,BY,LR'S,

9., PREMA,R.,NAYAK,, AGED,ABOUT,76,YEARS,,, W/O,M.,RATHNAKAR,NAYAK,,, RESIDING,AT,24-11-1168,,, SRI,RAM,NAYAK,COMPLEX,,, NANDI,GUDDA,ROAD,,JEPPU,,, MANGALORE-,575002,

¶10MR.,GAUTHAM,NAYAK,, AGED,ABOUT,56,YEARS,,, S/O,LATE,RATHNAKAR,NAYAK,,, RESIDING,AT,24-11-1168,,, SRI,RAM,NAYAK,COMPLEX,,, NANDI,GUDDA,ROAD,,JEPPU,,, MANGALORE-,575002,

¶11ANUPAMA,NAVEEN,KUMAR,, AGED,ABOUT,55,YEARS,,, D/O,LATE,M.,RATHNAKAR,NAYAK,,, W/O,DR.,NAVEEN,KUMAR,,, RESIDING,AT,NO.58,,ASHOKA,ROAD,,, SAGAR,,SHIMOGA-,577401.,

¶12M.,SURENDRA,NAYAK,, AGED,ABOUT,83,YEARS,,, S/O,M.,VAMANA,NAYAK,,, RESIDING,AT,SRI.,RAM,,JEPPU,,, MARNAMIKATE,,, e -e4e-eeeee e e NC:(2026:KHC:16093 MSA(No.(171(of(2025 MANGALORE-,575001, RAVINDRA,NAYAK,,, SINCE,DEAD,BY,LRs,,

¶13PRIYA,PAI,,, AGED,ABOUT,36,YEARS,,, D/O,LATE,JAYANATHI,R,NAYAK,,,

¶14RESHAN,KINI,, AGED,ABOUT,34,YEARS,,, D/O,LATE,JAYANATHI,R,NAYAK,,,

¶15SURAJ,KIRAN,NAYAK,, AGED,ABOUT,32,YEARS,,, S/O,LATE,JAYANTHI,R,NAYAK,,, NO.13,TO,15,ARE,R/AT,, VASANTHAASHRAMA,,, MPT,ROAD,,CAR,STREET,,, MANGALORE.,

¶16M.,RAMESH,NAYAK,, AGED,ABOUT,70,YEARS,,, S/O,M.,DAMODHARA,NAYAK,,, SRI,GANESH,,MORGANSGATE,,, MANGALURU.,

¶17MUKTHA,NAYAK,, AGED,ABOUT,76,YEARS,,, W/O,LATE,DAMODHARA,NAYAK,,,

¶18RAKESH,NAYAK, AGED,ABOUT,47,YEARS,,, W/O,LATE,DAMODHARA,NAYAK,,, e -e5e-eeeee e e NC:(2026:KHC:16093 MSA(No.(171(of(2025

¶19ROSHNI,NAYAK,, AGED,ABOUT,47,YEARS,,, W/O,LATE,DAMODHARA,NAYAK,,, NO.16,AND,18,ARE,RESIDING,AT,, MANGALA,,SILVA,CROSS,ROAD,,, NEAR,P.F.OFFICE,,, MANGALORE-,575002,

¶20HEMALATHA,NAYAK,, AGED,ABOUT,77,YEARS,,, W/O,DEVADAS,NAYAK,,, RESIDING,AT,, M.VAMAN,NAYAK,AND,SONS,,, JEPPU,,MARNAMIKATTE,,, MANGALORE,-,575001.,

¶21KIRANA,NAYAK,, AGED,ABOUT,50,YEARS,,, W/O,RAVI,SHETTY,,, RESIDING,AT,ABHIMAN,CHAMBERS,,, FLAT,NO.406,,NEAR,CITY,HOSPITAL,,, KADRI,,MANGALORE.,

¶22SHOBHA,NAYAK, AGED,ABOUT,42,YEARS,,, W/O,LATE,VIJAYA,NAYAK,,,

¶23ADITHI,, AGED,ABOUT,17,YEARS,,, D/O,LATE,VIJAYA,NAYAK,,

¶24KUMARI,ASTHA,, AGED,ABOUT,10,YEARS,,, D/O,LATE,VIJAYA,NAYAK,, e -e6e-eeeee e e NC:(2026:KHC:16093 MSA(No.(171(of(2025 RESPONDENTS,23,AND,24,ARE,MINORS, REPRESENTED,BY,THEIR,MOTHER,, AND,NATURAL,GUARDIAN,,, RESIDING,AT,M.,VAMAN,NAYAK,AND,SONS,, JEPPU,,MARNAMIKATTE,,, MANGALORE-,575001, …RESPONDENTS, , THIS,MSA,IS,FILED,UNDER,ORDER,43,RULE,1(U),OF,CPC,, AGAINST, THE, JUDGMENT, AND, DECREE, DATED, 5.04.2025, PASSED,IN,RA,NO.22/2023,ON,THE,FILE,OF,III,ADDITIONAL, DISTRICT, AND, SESSIONS, JUDGE,, D.K.,, MANGALURU,,, ALLOWING,THE,APPEAL,AND,SETTING,ASIDE,THE,JUDGEMENT, AND, DECREE, DATED, 1.07.2022, PASSED, IN, OS, NO., 78/2013, ON,THE,FILE,OF,THE,I,ADDITIONAL,SENIOR,CIVIL,JUDGE,AND, CJM,, MANGALURU,, D.K.,, DISMISSING, THE, SUIT, FOR, PARTITION, AND, THE, MATTER, IS, REMANDED, BACK, TO, THE, TRIAL,COURT,FOR,FRESH,CONSIDERATION,AND,FOR,SPEEDY, DISPOSAL,IN,ACCORDANCE,WITH,LAW.,,, , THIS, APPEAL,, COMING, ON, FOR, ORDERS,, THIS, DAY,, JUDGMENT,WAS,DELIVERED,THEREIN,AS,UNDER:,

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT

This appeal is filed against the judgment and decree dated 05.04.2025 passed in RA.No.22/2023 by the Court of III Additional District Judge, D.K., Mangaluru.

¶2In terms of the impugned judgment and decree, the judgment and decree passed by the Trial Court in O.S.No.78/2013 on the file of I Additional Senior Civil Judge, Mangaluru are set aside. The matter is remitted to the Trial Court with a direction for fresh consideration and for speedy disposal in accordance with law.

¶3The appeal before the First Appellate Court was filed by the plaintiff.

¶4The suit is for partition and separate possession, and was dismissed. The defendants raised the

contention that there is a registered release deed executed by the power of attorney holder of the plaintiff. The defendants led evidence. There was no cross-examination to the evidence of the contesting defendant No.1.

¶5Based on the registered release deed, the Trial Court has held that the plaintiff has not succeeded in establishing the fact that plaintiff has right over the property and accordingly, dismissed the suit.

¶6Before the First Appellate Court, it was urged that the plaintiff did not have sufficient opportunity to cross-examine the defendant, who has led the evidence based on the contention. The First Appellate Court has accepted the said contention and has remanded the matter permitting the plaintiff to cross-examine the witness examined on behalf of the defendant. Hence, the present second appeal.

¶7Learned counsel appearing defendant No.1/appellant would submit that the appeal is allowed and the matter is remanded without there being the contention by the plaintiff that he should be permitted to cross-examine defendant No.1 who is examined as DW.1. It is the further submission that no reasons are assigned by the plaintiff for not cross-examining DW.1, despite sufficient opportunity being given. Thus, he would urge that the impugned judgment and decree passed by the First Appellate Court are to be set aside.

¶8The Court has considered the contentions raised at the bar and perused the records.

¶9The following points arise for consideration: Whether the First Appellate Court is justified in remanding the matter to the Trial Court, permitting the plaintiff to cross examine DW.1?

¶10It is noticed that the suit is one for partition and separate possession. Defendant No.1 who is the brother of the plaintiff has raised a contention that the plaintiff has executed the registered relinquishment deed in favour of defendant No.1 and defendant No.1 has produced the registered relinquishment deed and also the power of attorney of the plaintiff's who according to Defendant No.1 was authorized to execute the registered relinquishment deed. It is noticed that there is no cross-examination to DW.1/defendant No.1, who raised a contention based on the registered deed and an unregistered power of attorney.

¶11Considering the nature of the controversy involved in this case, the Court is of the view that the order remanding the matter to the Trial Court permitting the plaintiff to cross-examine DW.1 cannot be said to be erroneous in the facts and circumstances of the case. Under the circumstances, this Court does not find any

merit in the appeal. Accordingly, the appeal is disposed of.

¶12Learned counsel the appellant submits that appellant is aged 69 years and is suffering from cancer. Under these circumstances, the plaintiff should not seek unnecessary adjournment before the Trial Court and should co-operate for early disposal.

¶13The plaintiff should cross-examine on the date fixed by the Trial Court. The plaintiff shall cross-examine DW-1, and thereafter, both the parties are permitted to lead additional evidence, if they desire.

¶14The Trial Court shall consider the case in accordance with law and thereafter, pass an appropriate orders/judgment.

¶15It is made clear that this Court has not expressed anything on the merits of the matter.

¶16Since it is submitted that the appellant is suffering from cancer, the trial court shall endeavour to dispose off the matter within 6 months from the date of the receipt of the copy of this order.

¶17In view of disposal of the appeal, pending interlocutory applications do not survive for consideration. Sd/- (ANANT RAMANATH HEGDE) JUDGE SSB