- 1 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS SECOND APPEAL NO. 100016 OF 2022 BETWEEN: 1. SHRI. BASAPPA S/O. MAHADEVAPPA GUNDAGAI @ NAYANEGALI, AGE 43 YEARS, OCC: AGRICULTURE, R/O. KIRAWADAGI, TAL: HUNGUND, DIST: BAGALKOT, PIN-587118. 2. SHRI. SHEKHARAPPA S/O. MAHADEVAPPA GUNDAGAI @ NAYANEGALI, AGE 38 YEARS, OCC: AGRICULTURE, R/O. KIRAWADAGI, TAL: HUNGUND, DIST: BAGALKOT, PIN-587118. 3. SHRI. SHIVANAPPA S/O. MAHADEVAPPA GUNDAGAI @ NAYANEGALI, AGE 46 YEARS, OCC: AGRICULTURE, R/O. KIRAWADAGI, TAL: HUNGUND, DIST: BAGALKOT, PIN-587118. 4. SMT. MALLAVVA W/O. MAHADEVAPPA GUNDAGAI @ NAYANEGALI, AGE 61 YEARS, OCC: AGRICULTURE, R/O. KIRAWADAGI, TAL: HUNGUND, Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 DIST. BAGALKOT, PIN-587118. …APPELLANTS (BY SRI. S. B. HEBBALLI, ADVOCATE) AND: 1. SHRI. CHANDRASHEKHARAPPA @ SHEKHARAPPA S/O. SHIVANAPPA GUNDAGAI @ NAYANEGALI, AGE 46 YEARS, OCC: AGRICULTURE, R/O. KIRAWADAGI, TAL. HUNGUND, DIST. BAGALKOT, PIN-587118. 2. SMT. YAMANAVVA W/O. CHANDAPPA NAYANEGALI, AGE 50 YEARS, OCC: HOUSEHOLD WORK, R/O. TOPALAKATTI, TAL: KUSTAGI, DIST. KOPPAL. 3. SMT. SHIVANAVVA W/O. YALLAPPA WALIKAR, AGE 63 YEARS, OCC: HOUSEHOLD WORK, R/O. KAMATAGI, TAL: HUNGUND, DIST. BAGALKOT-587101. …RESPONDENTS (BY SRI. N. L. BATAKURKI, ADV. FOR R1 TO R3) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER XLIII RULE 1(u) OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 03.12.2021 PASSED IN RA NO.33/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE HUNGUND ALLOWING THE APPEAL AND REMITTING THE MATTER TO THE TRAIL COURT AND RESTORE THE JUDGMENT AND DECREE DATED 12.03.2019 PASSED IN O.S NO.335/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, HUNGUND IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. This is an appeal by the plaintiffs in O.S.No.335/2014 challenging the judgment and decree passed by the Principal Civil Judge and JMFC, Hungund (for short, ‘the first appellate Court’) dated 03.12.2021 in R.A.No.33/2019 on the file of the Senior Civil Judge, Hungund (for short, ‘the trial Court’). 2. The parties are referred to as per their rankings before the trial Court. 3. Plaintiffs filed suit for partition before the Court of Principal Civil Judge and JMFC, Hungund in O.S.No.335/2014. It was contested by the defendants. 4. The trial Court framed necessary issues. 5. The trial Court after recording of the evidence and hearing the arguments, decreed the suit and also dismissed the counter claim made by defendant No.1 by decree and judgment dated 12.03.2019. 6. Defendant Nos.1 to 3 challenged the said judgment and decree passed in O.S.No.335/2014 before - 4 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 the Senior Civil Judge, Hungund. It appears that during the pendency of the said appeal, appellants filed application I.A.No.II under Order XLI Rule 27 of CPC. The first appellate Court at the time of final argument on considering the main appeal as well as on I.A.No.II, found that the said documents are relevant for determination of real dispute between the parties. Therefore set aside the judgment passed by the trial Court and the matter was remanded back to the trial Court with certain directions. 7. The trial Court by restoring O.S.No.335/2014 permitted the parties to produce additional documents and lead additional evidence before the trial Court, by the impugned judgment and decree dated 03.12.2021. Being aggrieved by the said judgment and decree, the suit was remanded to the trial Court, plaintiffs have preferred this appeal. 8. Learned counsel for the appellants vehemently contends that when an application filed under Order XLI Rule 27 of CPC, the Court shall go through the contents of the affidavit and if sufficient grounds were made out as - 5 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 stated under Order XLI Rule 27 of CPC then the said documents if very much relevant for disposal of the appeal, then only the Court should allow the said application permitting to produce all the additional documents and only on that ground the appeal cannot be remanded back to the trial Court. 9. The first appellate Court has also jurisdiction to record evidence as permitted under Order XLI Rule 33 of CPC. The matter was of the year 2013 and it is a simple suit for partition. Instead of setting aside the judgment and decree and remanding the matter to the trial Court, causing additional delay the first appellate Court could have recorded the suit. 10. He further contends that moreover documents sought to be produced by the defendants were already on record and they were marked by the plaintiffs. Therefore the documents which were sought to be produced by the defendants before the first appellate Court were not at all necessary document to pass effective judgment. Hence setting aside the judgment and remanding it to the trial - 6 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 Court for recording of fresh evidence, was unwarranted. In view of these reasons he prayed to set aside the said judgment and decree and direct the first appellate Court to decide the matter in accordance with law. 11. He further submits that certified copy of the judgment relied by the defendants before the first appellate Court could be considered without marking of the said documents, because it does not require for formal proof. 12. Learned counsel for the defendants/respondents submits that the learned first appellate Judge considering I.A.II as well as the documents, rightly held that the documents are very much necessary for passing of effective judgment. And hence the matter was remanded to the trial Court. No error is committed by the learned first appellate Judge for setting aside the said order passed by the trial Court. 13. If the matter is remanded back to the trial Court, the trial Court can hear the matter and decide the matter on merits. In that event, no hardship would be - 7 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 caused to the appellants and the appellants can cross- examine the said witness, in respect of the said documents. There are no reasons to interfere in the finding of the first appellate Court. Therefore trial Court dismissed the appeal with costs. 14. The points which arise for determination are: “whether remand of the suit to the trial Court for fresh consideration only on the ground of production of additional evidence is justifiable?” and “what order?”. Question No.1: 15. The answer of this Court to question No.1 is in the Negative as per the following reasons. 16. The plaintiffs have filed suit for partition. According to their contention, suit property was belonging to original propositus Basalingappa. He had a wife by name Bhimavva. From the said wedlock they had two sons and one daughter i.e., Basappa, Shivanappa and Siddavva. The said Basappa had a son by name Mahadevappa and plaintiffs are children of said Mahadevappa. Defendant Nos.1 to 3 are sons and - 8 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 daughter of said Shivanappa. Basalingappa, Bhimavva, Siddavva and Mahadevappa are no more. Siddavva died issue less and she had no legal heirs. There was no partition of the suit property. With these reasons plaintiffs prayed for partition and separate possession of her ½ share in the suit property. 17. Defendants admitted the genealogy and according to their contention R.S.No.67/2 measuring 4 acres 26 guntas was self acquired property of Bhimavva and not joint family property. After her death, her daughter Siddavva acquired right over the said property and her name was entered in the revenue records. Defendant No.1 was looking after Siddavva since she had no issues. In view of the said reason, Siddavva was intending to give the said property for the benefit of defendant No.1. During her lifetime, she gave varadi to the revenue authority and mutated the name of defendant No.1, in respect of the said property. The said varadi was considered by the revenue authorities. After the death of Siddavva, name of defendant No.1 was entered in the - 9 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 revenue records. Therefore defendant No.1 is the absolute owner of suit property and plaintiffs and other defendants have no right over the suit property. With these reasons, prayed to dismiss the suit. 18. It is rightly submitted by the learned counsel for the appellants that the learned first appellate Judge has not applied his mind while considering I.A.No.II. The matter was pending before the trial Court over a period of six years. In spite of that having sufficient opportunity, defendants did not produce relevant documents and in I.A.No.II filed under Order XLI Rule 27 of CPC there is no sufficient explanation for non-production of these documents during trial of the matter. As noted under Order XLI Rule 27 of CPC, party in an appeal have no right to produce document and they must seek permission to produce document and if justifiable reasons are shown as stated under Order XLI Rule 27 of CPC then only Court can permit for production of said document. 19. In this case looking to the documents produced by the plaintiffs and the documents sought to be produced - 10 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 in I.A.No.II dated 23.10.2020, they were already on record. Therefore for production of those documents there was no necessity for remanding of the matter to the trial Court when the documents are already on record. It makes no difference whether it was produced by the plaintiffs or defendants. The Court can go through the said documents and decide the issue between the parties. For the sake of discussion, even if the Court feels that these documents are very much necessary for just decision of the case, then first appellate Court has got all the powers of trial Court as directed under Order XLI Rule 33 of CPC, the first appellate Court could have recorded additional evidence if required to pass effective judgment. Therefore there are no justifiable reasons for the first appellate Court to set aside the judgment and remand the matter to the trial Court for recording of additional evidence thereafter decide the matter. 20. The said finding of the first appellate Court is erroneous. The first appellate Court could have exercised its jurisdiction as provided under Order XLI Rule 33 of - 11 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 CPC. Therefore the remand is not justifiable. Order passed by the first appellate Court to remand the matter to the trial Court for recording of further evidence and give finding is highly incorrect and call for interference by this Court. Accordingly the above question is answered in the negative and pass the following: ORDER i. Appeal is allowed. ii. The impugned judgment passed dated 03.12.2021 in R.A.No.33/2019 passed by the Senior Civil Judge, Hungund is set aside. iii. The matter is sent back to the first appellate Court to hear R.A.No.33/2019 afresh on merits and decide. If the first appellate Court finds that documents proposed to be produced are relevant and applicant has complied with provision of Order XLI Rule 27 of CPC then it shall decide the same in accordance with law as observed above. - 12 - NC: 2025:KHC-D:5223 MSA No. 100016 of 2022 iv. Looking to the pendency of the case from the year 2013 both the parties are directed to appear before the first appellate Court on 21.04.2025 without expecting notice from the said Court. v. Registry is directed to send back the TCR along with copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 18