- 1 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5015 OF 2011 (PAR-) BETWEEN: 1. SMT. SHANTAWWA W/O.GANGAPPA GADDIHALLI, SINCE DECEASED BY HER LRS. 1A. SMT. KALLAVVA W/O. MARABASAPPA HUNASHIKATTI, AGE: 52 YEARS, OCC:HOUSEHOLD WORK, R/O. HOSA TEGUR, TQ & DIST: DHARWAD. 1B. SHRI. BHIMAPPA S/O. GANGAPPA GADDIHALLI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. HONGAL ONI, M.K. HUBLI, TAL & DIST: DHARWAD. 1C. SMT. MAHADEVI W/O. ADRUSHAPPA BHENDIGERI, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O. PAGAD ONI, M.K. HUBLI, TAL: KITTUR, DIST: DHARWAD. SHRI. SURESH NAGAPPA JAVALI, SINCE DECEASED BY HIS LRS, 2. SMT. SAVITRI W/O. SURESH JAVALI, AGE: 47 YEARS, OCC: AGRICULTURE, and HOUSEHOLD, V N BADIGER Digitally signed by V N BADIGER Date: 2025.01.28 11:20:37 +0530 - 2 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 R/O.M.K. HUBLI, TQ. BAILHONGAL, DIST. BELGAUM. 3. SMT. ANNAPURNA W/O. BASAVRAJ GIREPPAGOUDAR, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O BAILWAD – 591102. TQ. BAILHONGAL, DIST. BELGAUM. 4. SHRI. IRAPPA SURESH JAVALI, AGE: 27 YEARS, OCC: AGRICULTURE, R/O M.K HUBLI, TQ. BAILHONGAL, DIST. BELGAUM. 5. SHRI. ISHWAR SURESH JAVALI, AGE: 24 YEARS, OCC: AGRICULTURE, R/O M.K HUBLI, TQ. BAILHONGAL, DIST. BELGAUM. 6. SMT. GANGAWWA W/O. MALLAPPA HULKUND, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O M.K HUBLI, TQ. BAILHONGAL, DIST. BELGAUM. 7. SHRI. ULAVAPPA NAGAPPA JAVALI, AGE: 43 YEARS, OCC: AGRICULTURE, R/O M.K HUBLI, TQ. BAILHONGAL, DIST. BELGAUM. …APPELLANTS (BY SRI. A. B. NESARAGI, ADVOCATE) - 3 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 AND: 1. SMT. KAMALAVVA W/O DUNDAPPA JAVALI, AGE: 73 YEARS, OCC: AGRICULTURE, R/O CHIKKABAGEWADI, TQ. BAILHONGAL, DIST. BELGAUM. DEAD 2. SHRI. CHANDRAPPA DUNDAPPA JAVALI, AGE: 45 YEARS, OCC: AGRICULTURE, R/O CHIKKABAGEWADI, TQ. BAILHONGAL, DIST. BELGAUM. 3. SMT. DEMAWWA W/O. IRAPPA HUDED, AGE: 51 YEARS, OCC: HOUSEHOLD, R/O PATTIHAL (K.S.), TQ. BAILHONGAL, DIST. BELGAUM. 4. SMT. KASHAWWA W/O. CHAMBAPPA HUDED, SINCE DECEASED BY HER LRS, SMT. GANGAWWA W/O. CHANDRASHEKHAR YAMMI, AGE: 58 YEARS, OCC: HOUSEHOLD, R/O. HIREBAGEWADI, TQ and DIST. BELGAUM. 5. SMT. GOURAWWA W/O CHANDRAPPA BHAIRANATTI SINCE DECEASED BY HER LRS 5A. SHRI. DYAMANNA S/O. CHAMBANNA BHAIRANATTI, AGE: 46 YEARS, OCC: BUSINESS, R/O. JOLAD ONI, - 4 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 C/O. NINGAPPA NAVALAGI, M.K.HUBLI, TAL. KITTUR, DIST: BELAGAVI PIN – 591118. 5B. SHRI. PRAKASH S/O. CHAMBANNA BHAIRANATTI, AGE: 44 YEARS, OCC: BUSINESS, R/O. JOLAD ONI, C/O. NINGAPPA NAVALAGI, M.K. HUBLI, TAL: KITTUR, DIST: DHARWAD. PIN – 591118. 5C. SHRI. SURESH S/O. CHAMBANNA BAIRANATTI, AGE: 40 YEARS, OCC: BUSINESS, R/O. JOLAD ONI, C/O. NINGAPPA NAVALGI M.K. HUBLI, TAL: KITTUR, DIST: DHARWAD. PIN – 591118. 6. SHRI. SHANTAPPA CHAMBAPPA HUDED, AGE: 52 YEARS, OCC: HOUSEHOLD, R/O PATTIHAL (K.S.) TQ. BAILHONGAL DIST. BELGAUM. 7. SHRI. SHIPAPPA CHAMBAPPA HUDED, AGE: 50 YEARS, OCC: AGRICULTURE, R/O PATTIHAL (K.S.) TQ. BAILHONGAL DIST. BELGAUM. 8. SHRI. IRAPPA CHAMBAPPA HUDED, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. PATTIHAL (K.S.) TQ. BAILHONGAL DIST. BELGAUM. - 5 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 9. SHRI. SHIVABASAPPA CHAMBAPPA HUDED, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. PATTIHAL (K.S.) TQ. BAILHONGAL, DIST. BELGAUM. 10. SHRI. CHANDRAPPA CHAMBAPPA HUDED, AGE: 42 YEARS, OCC: AGRICULTURE, R/O PATTIHAL (K.S.), TQ. BAILHONGAL, DIST. BELGAUM. …RESPONDENTS (R1- DECEASED; BY SRI. SANJAY S. KATAGERI, ADVOCATE FOR R2 & R3; R4 TO R10 – NOTICE DISPENSED WITH; R5 (A) – SERVED UNREPRESENTED; R5(B) AND R5 (C) – NOTICE HELD SUFFICIENT) ------- THIS RSA IS FILED U/SEC.100 R/W. O.42 RULE 1 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 23.11.2010 PASSED BY THE FAST TRACK COURT, BAILHONGAL IN R.A.17/2003 AND SET ASIDE THE JUDGMENT AND DECREE DATED 03.04.2003 PASSED BY HE ADDITIONAL CIVIL JUDGE, JR.DN., BAILHONGAL IN O.S.NO.16/1996 AND ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT OF THE RESPONDENTS IN O.S.NO.16/1996 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, JR.DN., BAILHONGAL. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 6 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 ORAL JUDGMENT 1. This appeal is filed by the defendants challenging the judgment and decree dated 23.11.2010 in R.A.No.17/2003 on the file of Fast Track Court at Bailhongal1 dismissing the appeal and confirming the judgment and decree dated 03.04.2003 in O.S.No.16/1996 on the file of the Additional Civil Judge (Jr.Dn.), Bailhongal2 decreeing the suit in part. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiffs that the propositus of the family of plaintiffs – Sadeppa had three sons and two daughters and he died on 16.04.1959. It is also stated that two children of late Sadeppa – Basappa and Paravva predeceased their father. They have no issues. It is also stated that after the death of Sadeppa, his son Nagappa was taking care of the family as a karta of the joint family. 1 Hereinafter referred to as ‘First Appellate Court’ 2 Hereinafter referred to as ‘Trial Court’ - 7 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 It is also stated that the said Nagappa (father of defendant Nos.1 to 4) filed Form No.7 before the Land Tribunal, Bailhongal seeking occupancy rights and same was granted to him. It is the contention of the plaintiffs that since the schedule property has been granted, which was a joint family property and as such sought for share in the tenanted land apart from the schedule properties mentioned in the plaint. Hence, plaintiff filed O.S.No.16/1996 before the Trial Court seeking relief of partition and separate possession in respect of the schedule property. 4. On service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific contention of the defendants that the Trial Court has no pecuniary jurisdiction to try the suit. 5. The Trial Court after considering the pleadings on record, formulated issues for its consideration. In order to prove their case, three witnesses were examined by the - 8 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 plaintiffs as PW.1 to PW.3 and marked 13 documents and same were marked as Ex.P.1 to P.13. Defendants have examined two witnesses as DW.1 and DW.2 and marked 12 documents as Ex.D.1 to D.12. 6. The Trial Court after considering the material on record, by its judgment and decree dated 03.04.2003 decreed the suit in part. Feeling aggrieved by the same, the defendants have filed R.A.No.17/2003 before the First Appellate Court and same was contested by the plaintiffs. The First Appellate Court after considering the material on record, by its judgment and decree dated 23.11.2010 dismissed the appeal, consequently, confirmed the judgment and decree in O.S.No.16/1996. Feeling aggrieved by the same, the defendants have preferred this Regular Second Appeal. 7. This Court vide order dated 18.02.2011, framed the following substantial questions of law: (i) Whether the Trial Court had the pecuniary jurisdiction to try and decide the suit? - 9 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 (ii) Whether the first appellate Court has considered the appeal in the manner required under Rule 31 of Order 41 CPC. (iii) Whether the findings and conclusion recorded by the Courts below are perverse? 8. I have heard Sri.A.B.Nesaragi, learned counsel appearing for the appellants and Sri.Sanjay S Katageri, learned counsel appearing for the respondents. 9. It is the principal submission of the learned counsel for the appellants that the First Appellate Court has not properly re-appreciated the facts on record in the light of the provisions contained under Order 41 Rule 31 of CPC. He also contended that both the Courts below have wrongly answered issue No.8 and therefore sought for interference of this Court. 10. Sri.Sanjay S Katageri, learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the Courts below and further argued that since the issue involved in - 10 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 this appeal is covered by the catena of decisions of the Hon’ble Supreme Court and this Court and therefore sought for dismissal of the appeal. 11. In the light of the submissions made by the learned counsel for the parties, I have carefully examined the findings recorded by both the Courts below and perused the original records. 12. It is forthcoming from the judgment and decree of the First Appellate Court that the learned Appellate Judge has not re-appreciated the material on record as required under Order 41 Rule 31 of CPC. The entire reasons runs nearly 1½ pages without culling out the facts and law to answer the issues involved in the suit. In this regard, it is relevant to cite the judgment of the Hon’ble Supreme Court in the case of Malluru Mallappa (Dead) through Legal Representatives vs. Kuruvathappa and Others reported in (2020) 4 SCC 313, wherein at para Nos.10 to 18 it is held as follows: - 11 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 “10. Section 96CPC provides for filing of an appeal from the decree passed by any court exercising original jurisdiction to the court authorised to hear the appeals from the decisions of such courts. In the instant case, the appeal from the decree passed by the trial court lies to the High Court. The expression “appeal” has not been defined in CPC. Black's Law Dictionary (7th Edn.) defines an appeal as “a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority”. It is a judicial examination of the decision by a higher court of the decision of a subordinate court to rectify any possible error in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors. 11. In Hari Shankar v. Rao Girdhari Lal Chowdhury [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] it was held that a right of appeal carries with it a right of rehearing on law as well as on fact, unless the statute conferring a right of appeal limits the rehearing in some way as has been done in second appeal arising under CPC. 12. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74 it was held thus : “5. … In the well-known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate - 12 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Article 1762, the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial.” 13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions - 13 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 14. A first appeal under Section 96CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature. 15. Order 41 Rule 31CPC provides the guidelines for the appellate court to decide the matter. For ready reference Order 41 Rule 31CPC is as under: “31. Contents, date and signature of judgment.—The judgment of the appellate court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 16. In Vinod Kumar v. Gangadhar this Court has reiterated the principles to be borne in mind while disposing of a first appeal, as under : “15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words : - 14 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 ‘3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.’” - 15 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 17. In Shasidhar v. Ashwini Uma Mathad [Shasidhar v. Ashwini Uma Mathad, it was held as under : “21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law.” 18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.” - 16 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 13. Following the declaration of law made by the Hon’ble Supreme Court, I am of the view that the First Appellate Court has not re-appreciated the material on record as required under Order 41 Rule 31 of CPC. Though the learned counsel for the respondents contended that the principles involved insofar as partition suits are settled however, the said arguments cannot be accepted solely on the ground that there is no re-appreciation of material on record by the First Appellate Court, which is a last facts finding Court to reassess the entire oral and documentary evidence in the light of the issues framed by the Trial Court. 14. It is also to be noted that issue No.8 framed by the Trial Court is relating to the jurisdiction of the Court, which has to be answered by the First Appellate Court as required under Order 41 Rule 31 of CPC. Hence, I find force in the submission made by the learned counsel for the appellants and the impugned judgment and decree passed by the First Appellate Court is required to be set - 17 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 aside and matter needs to be re-assessed by the First Appellate Court in terms of the observation made above. 15. Accordingly, substantial questions of law framed above are answered in favour of the appellants herein. 16. Hence, I pass the following: ORDER i. The appeal is allowed in part. ii. The judgment and decree dated 23.11.2010 in R.A.No.17/2003 on the file of Fast Track Court, Bailhongal is hereby set aside and the matter is remanded to the First Appellate Court to frame points for determination and to answer the same in accordance with the provisions contained under Order 41 Rule 31 of CPC. iii. It is made clear that, the First Appellate Court is requested to complete the proceedings at the - 18 - NC: 2025:KHC-D:1202 RSA No. 5015 of 2011 earliest within a period of six months from the date of appearance of the parties. iv. Since the parties are represented through their learned counsel and in order to avoid further delay in the matter, the parties are directed to appear before the Principal Senior Civil Judge, Bailhongal, which is a competent Court since no Fast Track Court are working, on 03.03.2025 at 11.00 a.m., without waiting for further notice in this regard. Sd/- (E.S.INDIRESH) JUDGE sh List No.: 1 Sl No.: 47