- 1 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.35464/2018 (GM-CPC) BETWEEN: 1. KUMARI M.S. BINDUSHREE D/O M. INDUMATHI AGED ABOUT 28 YEARS. 2. KUMARI M.S. SINDUSHREE D/O M. INDUMATHI AGED ABOUT 24 YEARS. BOTH ARE R/OF. 4TH CROSS NEAR KAMBALAMMA TEMPLE HOSAHALLI, MANDYA-571606. …PETITIONERS (BY SRI. SHASHANK S, ADV.,) AND: 1. SRI. M.K. SRINIVASAN S/O LATE KARIGOWDA AGED ABOUT 60 YEARS R/OF. MANGALA VILLAGE KOTHATHI HOBLI, MANDYA-571478. KUBREPPA ANNAPPA PARANDE SINCE DECEASED BY HIS LRS. 2. SMT. LALITHA PARANDE W/O LATE KUBREPPA ANNAPPA PARANDE AGED ABOUT 72 YEARS RESIDENT OF D.NO.3851 SHANKAR NAGAR, MANDYA-571401. Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 SRI. ANANDA PARANDE SINCE DECEASED BY HIS LRS. 3. SMT. NALINI W/O LATE ANANDA K. PARANDE AGED ABOUT 44 YEARS. 4. KUMARI. LIKITHA D/O ANANDA K. PARANDE AGED ABOUT 19 YEARS. 5. KUMAR. VACHAN S/O ANANDA K. PARANDE AGED ABOUT 14 YERS. RESPONDENT NOS.3 TO 5 ARE R/AT NO.D-48, CFTRI QUARTERS JAYALAKSHMIPURAM KALIDASA ROAD, MYSORE-570012. 6. SRI. NANDISH PARANDE S/O LATE KUBREPPA ANNAPPA PARANDE AGED ABOUT 57 YEARS. 7. SMT. SANGEETHA D/O LATE KUBREPPA ANNAPPA PARANDE AGED ABOUT 54 YEARS. RESPONDENT NOS.6 AND 7 ARE R/AT NO.DNO.3851, SHANKAR NAGAR MANDYA-571401. …RESPONDENTS (BY SRI. K.L. SREENIVAS, ADV., FOR R2 & R6 R1, R3, R4 AND R5 ARE SERVED AND UNREPRESENTED V/O/DTD:12.10.2023 PETITION AGAINST R7 IS DISMISSED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI TO SET ASIDE IMPUGNED ORDER DATED 27.01.2018 ON I.A.IV IN R.A.NO.62 OF 2016 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AT MANDYA VIDE ANNEXURE-G & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 27.01.2018 passed on I.A.No.4 filed by the respondent No.6 under Section 11 of the Code of Civil Procedure, 1908, in R.A.No.62/2016, on the file of the IV Additional District and Sessions Judge, Mandya. 2. Heard. 3. Sri.Shashank S., learned counsel for the petitioners submits that the Appellate Court committed a grave error in allowing the application filed by the respondent No.6 under Section 11 of the CPC. The issue No.2 in the original suit was not decided by the Trial Court as well as the Appellate Court in R.A.No.52/2013. It was only a clear remand in R.A.No.52/2013. However, after remand, the Trial Court has decreed the suit except item No.4 which was challenged in an appeal in R.A.No.62/2016. The Appellate Court ought to have considered the nature of remand by the Appellate Court at the first instance and without appreciating the same, it has allowed the application filed by the respondent No.6 holding that the - 4 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 appeal in R.A.No.62/2016 is barred under Section 11 of the CPC and later rejected the appeal. The Appellate Court considered the stray observations made by the Appellate Court at the first instance and came to the conclusion that the remand was a conditional remand excluding item No.4 of the suit schedule properties. Hence, he seeks to allow the petition. 4. Per contra, Sri.K.L.Sreenivas, learned counsel for the respondent Nos.2 and 6 supports the impugned order of the Appellate Court and submits that the finding recorded by the Appellate Court in R.A.No.52/2013 clearly demonstrates that item No.4 of the suit schedule properties is excluded and thereafter, the matter was remanded back to the Trial Court to re-consider the case of the petitioners on merits and the Trial Court, after remand has rightly decreed the suit except item No.4 of the suit schedule properties. Hence, the Appellate Court, in the second round of litigation rightly allowed the application filed under Section 11 of the CPC holding that the second appeal is not maintainable. Hence, he seeks to dismiss the petition. - 5 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 5. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent Nos.2 and 6 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides. 6. The petitioners filed O.S.No.164/2006 seeking the relief of partition and separate possession over the suit schedule properties. Admittedly, there were item Nos.1 to 5 which were the subject matter of the suit. The said suit filed by the petitioners came to be dismissed vide judgment and decree dated 21.04.2012. 7. The petitioners filed R.A.No.52/2013 being aggrieved by the judgment and decree in O.S.No.164/2006. The Appellate Court allowed the appeal vide judgment and decree dated 18.06.2014 by setting aside the judgment and decree passed in O.S.No.164/2006 dated 21.04.2012 and the matter was remitted to the Trial Court with a direction to dispose of the matter within three months from the date of order by issuing notice to both the parties. The Appellate - 6 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 Court, in R.A.No.52/2013 while allowing the appeal and remanding the matter back to the Trial Court, has made observations at paragraphs 14 and 15 that as per the finding of the Trial Court, the suit schedule properties are the ancestral properties of the plaintiffs and the defendants and thereby, the plaintiffs are having share in the properties. Further, it has observed that even assuming that the alienation made by the defendant No.1 in favour of the defendant No.2 is a valid one with the knowledge of the plaintiffs as well as for the welfare of the plaintiffs, but they are having share in other properties described in the schedule. But unfortunately, the learned Civil Judge lost sight of the same with regard to the rights of the plaintiffs over the properties. 8. It has also observed that in the instant case, admittedly the suit is for partition and separate possession of the share of the plaintiffs over the suit schedule properties coupled with the declaration of the deed executed by the respondent No.1 in favour of the defendant No.2 by alienating item No.4 of the suit schedule properties. If item No.4 of the suit schedule properties is excluded with regard to the share of - 7 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 the plaintiffs, there are other 4 properties wherein the plaintiffs are having a share. The learned Trial Judge lost sight of the same and dismissed the suit which is illegal. The aforesaid observations of the Appellate Court in R.A.No.52/2013 were only for the purpose of remand. However, it has not upheld the judgment and decree dated 21.04.2012 passed in O.S.No.164/2006 insofar as item No.4 of the suit schedule properties is concerned. The order of the Appellate Court dated 18.06.2014 in R.A.No.52/2013 is required to be read as a whole and the operative portion of the order is very clear to the effect that the entire judgment and decree dated 21.04.2012 passed in O.S.No.164/2006 of the Trial Court is set aside with a direction to dispose of the matter within three months. 9. In my considered view, the remand by the Appellate Court in R.A.No.52/2013 is a remand in its entirety and not excluding item No.4 of the suit schedule properties. Having come to the conclusion that the remand is a complete remand, I am of the considered view that the Trial Court, after remand ought to have considered all the issues framed in O.S.No.164/2006 and recorded the finding. The aforesaid - 8 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 finding recorded by this Court on item No.4 and also issue No.2 is a prima facie opinion. The Appellate Court in R.A.No.62/2016 is required to examine the appeal on its merits and in accordance with law. 10. For the aforementioned reasons, I am of the considered view that the Appellate Court after remand in R.A.No.52/2013 has committed a grave error in recording the finding that the second appeal filed by the petitioner in R.A.No.62/2016 is hit by the doctrine of res judicata. It is made clear that the findings recorded by this Court are prima facie findings only with regard to the lis in question. The Appellate Court shall consider the appeal in R.A.No.62/2016 on its merits and dispose of the same after providing sufficient opportunity to the parties. Hence, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 27.01.2018 passed on I.A.No.4 filed by the respondent No.6 under Section 11 of the CPC in R.A.No.62/2016 on the file of the - 9 - HC-KAR NC: 2025:KHC:26605 W.P. No.35464/2018 IV Additional District and Sessions Judge, Mandya, is set aside. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 21