- 1 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE MISCL SECOND APPEAL NO. 200161 OF 2019 (LA) BETWEEN: 1. DANESHWARI W/O BASAVARAJ SARASAMBI, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O: NANDU ONI, WARD NO.4, CHADCHAN, TQ:CHADCHAN, DIST: VIJAYAPURA – 586 205. 2. CHIDANAND S/O BASAVARAJ SARASAMBI, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: NANDU ONI, WARD NO.4, CHADCHAN, TQ:CHADCHAN, DIST: VIJAYAPURA – 586 205. 3. DAYANAND S/O BASAVARAJ SARASAMBI AGE: 32 YEARS, OCC: AGRICULTURE, R/O NANDU ONI, WARD NO. 4, CHADCHAN, TQ:CHADCHAN, DIST: VIJAYAPUR - 586 205. 4. NAGAMMA W/O SHRISHAIL NARONI, AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O GOTHE COMPLEX, CHADCHAN, TQ:CHADCHAN DIST: VIJAYAPUR – 586 205. Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 5. SRI. RAJASHEKHAR S/O DUNDAPPA SARASAMBI, AGE: 34 YEARS, OCC: AGRICULTURE, R/O CHADCHAN, TQ:CHADCHAN, DIST: VIJAYAPUR – 586 205. …APPELLANTS (BY SRI. D.P.AMBEKAR, ADVOCATE) AND: 1. SRI. TUKARAM S/O SHANKAR NATIKAR, AGE: 45 YEARS, OCC: AGRICULTURE, 2. REVAPPA S/o SHANKAR NATIKAR, AGE: 42 YEARS, OCC: AGRICULTURE, 3. SHIVAPPA S/O SHANKAR NATIKAR, AGE: 39 YEARS, OCC: AGRICULTURE, 4. SHANTABAI D/O SHANKAR NATIKAR, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, 5. SUMITRA D/O SHANKAR NATIKAR, AGE: 27 YEARS, OCC:AGRICULTURE, ALL R/O CHADACHAN, TQ:CHADCHAN, DIST: VIJAYAPUR – 586 205. …RESPONDENTS (BY SRI. G.G.CHAGASHETTI, ADVOCATE) THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF THE CPC PRAYING TO SET-ASIDE THE JUDGMENT/ORDER OF REMAND DATED 20.04.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, INDI IN RA NO.01/2016 SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.12.20215 PASSED BY THE ADDL. CIVIL JUDGE & JMFC, INDI IN O.S.NO.9/2011 AND FURTHER DISMISS THE SAID SUIT AND THE SAID REGULAR APPEAL WITH COSTS THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY. - 3 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the appellants as well as learned counsel appearing for respondents. 2. This miscellaneous second appeal is directed against the decree in R.A.No.1/2016 on the file of Senior Civil Judge, Indi. In terms of the impugned decree, the First Appellate Court has remanded the matter to the Trial Court for recording the finding on all issues. The suit in O.S.No.9/2011 on the file of Additional Civil Judge, Indi was filed for the relief of declaration of title and consequential relief of injunction along with the relief of partition. The plaintiffs have also sought the relief that the sale deed dated 13.08.1971 is invalid. - 4 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 3. In terms of judgment in decree dated 07.12.2015, the suit is dismissed as not maintainable. The Trial Court has passed the order based on the preliminary issue which reads as under : “Whether the defendants prove that the suit is not maintainable, in view of the order of the Hon’ble High Court of Karnataka in W.P.No.13997/1989 ?” 4. Learned counsel appearing for the defendants/ appellants would submit that the plaintiffs’ father had sold the property to original defendant No.1 - Dundappa under registered sale deed dated 13.04.1971. Thereafter, the plaintiffs’ father applied for re-grant of the land as the land was attached to the Village Office. The father of defendant No.1 who had purchased the property filed the writ petition challenging the order of Tahsildar who has cancelled the sale-deed in favour of father of defendant No.1 and the said W.P.No.13996/1989 was allowed and in this Court has declared that the sale-deed is in favour - 5 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 defendant No.1, is valid. The vendor did not question the sale-deed. 5. Later the vendor’s children filed the suit for declaration and partition referred to above. In the said suit, the aforementioned order is passed on the ground that the suit is not maintainable in view of the order passed in the writ petition. In an appeal by the plaintiffs, the judgment of the Trial Court is set-aside and the matter is remanded. 6. Learned counsel appearing for the appellants would contend that the order of remand is erroneous inasmuch as there is already a finding relating to the validity of the sale-deed and said finding has attained finality in terms of order passed in W.P.No.13997/1989. He would also contend that the suit is time barred as the plaintiffs should have filed the suit within the time stipulated. Even assuming that, the plaintiffs were minors when the property was sold in the year 1971, the plaintiffs ought to have filed a suit within three years from the date - 6 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 of attaining the majority and suit having been filed beyond three years from the date of attaining majority, is time barred, as such matter could not have been remanded. 7. In addition, the learned counsel for the appellants submits that except one, other plaintiffs were not born when the property was re-granted. And some plaintiffs were not born when the property was sold. As such, he would contend that the suit filed by those plaintiffs who were born after the regrant and after the sale is not maintainable. 8. Learned counsel appearing for the respondents on the other hand would contend that the defendants have challenged the validity of the sale-deed on the premise that the alienation by the father of defendants is not for family necessity. It is also his contention that in the order passed in W.P.No.13997/1989, the validity of the sale- deed qua the legal necessity is not answered and as such, the suit is maintainable. - 7 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 9. This Court has considered the contentions raised at the Bar and perused the records. 10. Following point arises for consideration is - “Whether the First Appellate Court is justified in remanding the matter despite the finding in W.P.No.13997/1989 ?” 11. It is not in dispute that the sale-deed was executed on 13.04.1971 by the plaintiffs’ father. Later, he applied for re-grant and the property was re-granted to him in the year 1976. Applying the principles of feeding the grant by estoppel, the title of defendants’ father is established from the date of re-grant in favour of plaintiffs’ father Shankar, who sold the property on 13.04.1971. When this Court held that defendant No.1 acquired a title because of sale-deed dated 13.04.1971 applying the doctrine of feeding the grant by estoppel, this Court did not consider the validity of the sale-deed vis-à-vis the right of the father to alienate the property for the benefit - 8 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 of the family, assuming that the properties are purchased from the joint family income. 12. Since the whether the same is for the benefit of family necessity is not decided that question requires to be decided. 13. In addition, assuming that the defendants have not raised contention that the suit is time barred, under Section 3 of the Limitation Act, the Court is under obligation to consider the question relating to limitation. 14. Under these circumstances, the order of remand is upheld. However, this Court is of the view that certain directions are to be issued to the Trial Court. 15. The Trial Court shall frame issue relating to the limitation and liberty is also granted to the defendants to move an application to raise the issue relating to limitation as preliminary issue provided the conditions for treating the issue on limitation as preliminary issue are full filled. That is if the issue of limitation is based on the admitted - 9 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 facts, the Court can decide the question of limitation without recording evidence and in such event the Court can treat the issue as a preliminary issue. 16. If Court is of the view that the issue cannot be treated as a preliminary issue, the Court shall frame other issues based on the pleadings and thereafter record the evidence and adjudicate the case in accordance with law. 17. In case the defendants intend to raise a contention that some of the plaintiffs were not born at the time of re-grant or at the time of purchase of land, it is for the appellants/defendants to raise such contention in the written statement. If such contention is not yet raised appellants are at liberty to move the application for amendment of the written statement and same shall be considered in accordance with law. 18. The party shall appear before the Trial Court on 31.04.2025 without any further notice. - 10 - NC: 2025:KHC-K:1616 MSA No. 200161 of 2019 19. It is made clear that nothing is expressed on the contentions of either of the parties. All contentions are kept open. Accordingly the appeal is disposed of. Sd/- (ANANT RAMANATH HEGDE) JUDGE SN List No.: 1 Sl No.: 32