- 1 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 1189 OF 2016 (PAR) BETWEEN: SHASHISHEKAR, SINCE DEAD BY LRS. 1A. SMT. SHIVAGANGAMMA W/O. LATE SHASHISHEKAR, AGED ABOUT 35 YEARS. 1B. SRI. ROHIT S/O. LATE SHASHISHEKAR, AGED ABOUT 16 YEARS. 1C. SRI. CHARAN, S/O. LATE SHASHISHEKAR, AGED ABOUT 14 YEARS. 1B & 1C ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. SHIVAGANGAMA 1A. ALL ARE RESIDING AT HONNASAGERE VILLAGE, HEBBUR HOBLI - 572120 TUMKUR TALUK & DISTRICT. 2. SMT. VIJAYA W/O YOGESH, AGED ABOUT 46 YEARS, R/O. THOVINAKERE, DANDINASHIVARA HOBLI - 572215, TURUVEKERE TALUK. Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 3. SMT. GIRIJAMMA, W/O HARISH, AGED ABOUT 38 YEARS, R/O. INDISKERE, TIPTUR TALUK - 572215 …APPELLANTS (BY SMT. KAVYA ANIL KUMAR .S., ADVOCATE FOR SRI. ANIL KUMAR .S., ADVOCATE AND SMT. P. SUNITHA, ADVOCATE) AND: 1. SMT. GANGAMMA, W/O. LATE SIDDANANJAPPA, MAJOR, R/O GUBBI HOSAHALLI, KAABA HOBLI, GUBBI TALUK - 572216 2. SMT. KAMALAMMA DIED ON 23/05/2024 SINCE DEAD BY LRS. 2A. MANJAMMA, W/O VIJAY KUMAR, AGED ABOUT 60 YEARS, 2B. NATARAJU, S/O CHANDRASHEKARIAH, AGED ABOUT 54 YEARS 2C. UMESH S/O CHANADRASHEKARAIAH, AGED ABOUT 50 YEARS RESPONDENTS 2A TO 2C ARE R/AT MAVINAKUNTE VILLAGE, BELAGAVI HOBLI, TUMKUR TALUK AND DIST. - 3 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 3. SMT. RATHNAMMA SINCE DEAD BY LRS. DIED ON 02.05.2020 3A. SRI. SATISH S/O BASAVARAJU AGED ABOUT 45 YEARS, R/AT IDEKNAHALLI, NITTUR HOBLI, GUBBI TALUK - 572216 …RESPONDENTS (BY SRI. KISHAN G.S., ADVOCATE FOR R1, R2 (A TO C) & R3 (A)) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 06.04.2016 PASSED IN RA NO.69/2015 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND JMFC., TUMAKURU, DISMISSING THE APPEAL FILED AGAINST THE ORDER DATED 18.04.2015 PASSED IN OS NO.699/2000 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, TUMKUR. RECONFIRMING THE JUDGMENT ALREADY PASSED BY THE COURT ON 31.05.2007. THIS RSA, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 4 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 ORAL JUDGMENT This appeal is preferred by defendant Nos. 1 to 3, assailing the judgment and decree dated 06.04.2016 in RA No. 69/2015 on the file of Second Additional Senior Civil Judge and JMFC, Tumkuru, dismissing the appeal as not maintainable against the judgment and decree dated 18.04.2015 in OS No.699/2000 on the file of the Principal Civil Judge (Jr. Dn.) and JMFC, Tumkuru, confirming the judgment and decree dated 31.05.2007. 2. For the sake of convenience, parties are referred as per their ranking before the Trial Court. 3. Heard Smt. Kavya Anil Kumar.S, learned counsel for Sri Anil Kumar S and Smt. P.C.Sunitha, learned counsels appearing for the appellants and Sri Kishan.G.S, learned counsel appearing for the respondents. 4. This Court vide order dated 28.11.2022, formulated the following substantial questions of law: " 1. When the judgment and decree passed by the Trial Court on 31.05.2007 are set aside by the First Appellate - 5 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 Court in Appeal No.5/2013 and the matter was remanded to the Trial Court, whether the Trial Court is justified in re- confirming the same judgment and decree which were set aside by the First Appellate Court, without discussing the evidence on record? 2. Whether the First Appellate Court is justified in dismissing the appeal on the premise that appeal does not lie against the order dated 18.04.2015." 5. Having taken note of the submission made by the learned counsel appearing for the parties, that defendant Nos.1 to 3 are the children of Shivarudramma and the said Shivarudramma is the sister of the plaintiff and defendant Nos.4 and 5. It is also not in dispute that the suit schedule properties are the joint family properties of the plaintiff and defendants, as the properties belonged to their father - late Siddappa. 6. It is also forthcoming from the records that the suit came to be decreed on 31.05.2007, by the Trial Court and being aggrieved by the same, defendants Nos.1 to 3 have preferred RA No.5/2013 before the First Appellate Court and the First Appellate Court by judgment and - 6 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 decree dated 07.03.2015 allowed the appeal and set aside the judgment and decree dated 31.05.2007 in OS No. 699/2000 and remitted back the matter to the Trial Court for fresh consideration. Thereafter, the Trial Court, vide order dated 18.04.2015, confirmed the judgment and decree dated 31.05.2007. Feeling aggrieved by the same, defendant Nos.1 to 3 have preferred RA. No.69/2015 before the First Appellate Court and the First Appellate Court vide order dated 06.04.2016 dismissed the appeal as not maintainable on the ground that, the judgment and decree passed by the Trial Court on 18.04.2015 is only an order and not a judgment and decree in the suit. Feeling aggrieved by the same, defendant Nos.1 to 3 have preferred this appeal. 7. Having taken note of the submission made by the learned counsel appearing for the parties, on careful consideration of the judgment and decree dated 07.03.2015, in RA No.5/2013, wherein, the First Appellate Court, on the earlier occasion, had allowed the appeal and as such, set aside the judgment and decree dated - 7 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 31.05.2007 in OS No.699/2000. Accordingly, the matter was remitted to the Trial Court for fresh consideration for affording opportunity of hearing to both sides. In that view of the matter, I am of the view that, the Trial Court, vide order dated 18.04.2015, without considering the procedure contemplated under the Code of Civil Procedure 1908, to decide the suit on merits, has erroneously confirmed the judgment and decree dated 31.05.2007. It is also to be noted that, the First Appeal Court, took into consideration the order dated 18.04.2015 passed by the Trial Court as not a judgment and decree and only an order, accordingly, declined to interfere with the appeal preferred by defendant Nos.1 to 3. In that view of the matter, I am of the opinion that, the order dated 18.04.2015 passed by the Trial Court is unsustainable in law as the Trial Court after remand made by the First Appellate Court in RA No.5/2013 has not formulated the issues and has not posted the matter for evidence of the parties. In that view of the matter, I find force in the submission made by the learned counsel appearing for the - 8 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 appellants and it is a fit case to remand the matter to the Trial Court for fresh consideration in the light of the observation made above. Hence, the substantial question of law referred to above favours the defendant Nos. 1 to 3 in so far as remanding the matter to the Trial Court for persuasion. In the result, I will pass the following order: ORDER 1. Regular Second Appeal is allowed. 2. R.A.69/2015 dated 06.04.2016 on the file of Second Additional Senior Civil Judge and JMFC, Tumakuru, is hereby set aside. 3. Order dated 18.04.2015 in OS No. 699/2007 on the file of Principal Civil Judge and JMFC, Tumakuru, is hereby set aside and the matter is remitted to the Trial Court for fresh consideration, in the light of the observation made above. In order to avoid further delay in the matter, since the parties are represented through their learned counsels, - 9 - HC-KAR NC: 2025:KHC:36235 RSA No. 1189 of 2016 parties are directed to appear before the Trial Court on 15.10.2025. The Trial Court is requested to dispose of the suit at the earliest. Sd/- (E.S.INDIRESH) JUDGE SPV CT:VS List No.: 1 Sl No.: 55