- 1 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS SECOND APPEAL NO. 100081 OF 2019 (RO) BETWEEN: SRI. CHANNAPPA S/O. MALLAPPA PATIL, AGE 61 YEARS, OCC: AGRICULTURE, R/O. MAHALINGAPUR, TQ: MUDHOL, DIST: BAGALKOTE. - APPELLANT (BY SRI. M. C. HUKKERI, ADVOCATE) AND: 1. SMT. BANDAWWA W/O. KRISHTAPPA TUBAKI, AGE 34 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, R/O. DADANATTI, TQ: MUDHOL, DIST: BAGALKOT. 2. SMT. PADDAWWA W/O. CHANNAPPA PATIL, AGE 50 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, R/O. MAHALINGAPUR, TQ: MUDHOL, DIST: BAGALKOT. 3. SMT. GOURAWWA MARUTEPPA DANDYAGOL, AGE 41 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O. MAHALINGAPUR, TQ: MUDHOL, DIST: BAGALKOT. 4. KUMARI TAYAWWA D/O. CHANNAPPA PATIL, AGE 20 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O. MAHALINGAPUR, TQ: MUDHOL, DIST: BAGALKOT. 5. KUMARI SANYAWWA, D/O. CHANNAPPA PATIL, AGE 18 YEARS, OCC: NIL. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 6. KUMAR PARAMANAND, S/O. CHANNAPPA PATIL, AGE 15 YEARS, OCC: NIL. 7. KUMARI RACHANA, D/O. CHANNAPPA PATIL, AGE 13 YEARS, OCC: NIL. 8. KUMAR HANAMANTHA GOUDA, S/O. CHANNAPPA PATIL, AGE 10 YEARS, OCC: NIL, (RESPONDENT NO.6, 7 & 8 ARE MINORS REPRESENTED BY GENITIVE MOTHER AND GUARDIAN OF RESPONDENT NO.3, SMT.GOURAWWA D/O. MARUTEPPA PATIL. - RESPONDENTS (BY SRI. SHIVAKUMAR APARAJ, ADV. FOR SRI. MRUTYUNJAY TATA BANGI, ADV. FOR R1; SRI. S. C. BHUTI, ADV. FOR R3 TO R8; R6 TO R8 ARE MINORS REP. BY R3; NOTICE TO R2 SERVED) THIS MISCELLANEOUS SECOND APPEAL IS FILED U/SEC.43 RULE 1 (u) OF CPC. PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND J.M.F.C, MUDHOL IN R.A. NO.3/2018 DATED 26.04.2019 AND ALLOW THE APPEAL WITH COST THROUGHOUT BY CONFIRMING THE TRIAL COURT JUDGMENT AND DECREE DATED 31.10.2017 PASSED IN O.S. NO.333/2012 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MUDHOL AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is by the defendant No.1 against the judgment and decree dated 26.04.2019 passed in R.A. No. 03/2018 by the Principal Senior Civil Judge & JMFC, Mudhol (for short, the ‘first appellate Court’). The learned first appellate Court allowed the appeal and remanded the case to the trial Court by the impugned judgment for reconsideration of the suit. Aggrieved by the same, the defendant No.1 has preferred this appeal. Parties are referred to as per their ranking before the trial Court. 2. The plaintiff has filed a suit for partition and separate possession of her share in the suit property. She has stated about the genealogy and mode of acquisition of the property. Contesting defendants more or less accepted the said contention but according to them there was earlier partition on 30.08.2005 and according to the said partition the properties were divided between the - 4 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 parties to the suit and document was executed accordingly. Therefore, question of joint family property as on the date of suit would not arise. 3. The trial Court has framed the following issues: 1. Whether the plaintiff proves that, suit schedule properties are joint family properties comprising of herself and defendant No.1? 2. Whether the defendant No.1 proves that already partition between plaintiff and defendant No.1 and 2 has taken place on 30.08.2005 and accordingly the plaintiff has been allotted CTS No. 335 and 336 house and open space towards her share? 3. Whether the defendant No.1 further proves as per partition M.R. No. 28/2008-09 came to be entered and plaintiff’s name is entered accordingly? 4. Whether the defendant No.1, 3 to 7 further proves that the defendant No.2 after receiving an amount of Rs.50,000/- towards her share has acknowledged her share on 30.08.2005 and also has withdrawn Cril. Misc. No. 122/2004 and the same is binding on plaintiff and defendant No.2? 5. Whether the defendant No.1 and 3 to 7 prove that the value of suit schedule properties are more than 1 crore and hence this Court has no pecuniary jurisdiction to entertain the suit? - 5 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 6. Whether the plaintiff is entitled for 1/3 + 1/7th share in suit schedule properties? 7. Whether the plaintiff is entitled for the relief of partition and separate possession? 8. What decree or order? 4. After recording the evidence, hearing arguments and appreciating the pleadings and the evidence, trial Court dismissed the suit holding that there was an earlier partition of the year 2005. Aggrieved by the same, the plaintiff preferred first appeal before the learned Principal Senior Civil Judge & JMFC, Mudhol in R.A. No. 03/2018. The learned first appellate Judge heard the arguments of both sides and after re-appreciating the materials available on record, allowed the appeal, set aside the judgment and decree passed in O.S. No. 333/2012 dated 30.10.2017 and remanded the matter to the trial Court for re-trial by giving opportunity to both parties to lead further evidence, if any, and decide the matter within six months. 5. Heard the arguments of learned Advocates appearing for both the parties. - 6 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 6. Learned Advocate for the appellant vehemently contends that the issues No.3 to 6 are not material issues. Issues No.3 to 5 were covered under issue No.2. Once issue Nos.1 and 2 is answered, issue Nos.3 to 5 lose its importance. The trial Court considered issue Nos.1 and 2 and answered issue No.1 in the negative and the issue No.2 in the affirmative. The trial Court held that when issue No.2 is proved, i.e., earlier partition, there was no need for considering the issues No.3 to 6. Trial Court dismissed the suit. 7. He further contends Materials were available before the first appellate court and both parties have not filed any application for production of additional evidence. Plaintiff was aggrieved by finding on issue No.1. She did not challenge the judgment and decree of the trial Court on the ground of not answering issues No.3 to 6. The burden of proving the said issues were on the defendants. Inspite of that the first appellate Court and without deciding the appeal on merits without any justifiable - 7 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 reasons, set aside the judgment and remanded the matter to the trial Court. The provisions of Order 41 Rule 23 is very clear, unless conditions mentioned in Order Rule 23 are fulfilled, remanding of the appeal to the trial Court for fresh trial is unwarranted. The parties are litigating for last about 13 years. Under these circumstances the order of remand is totally illegal. Therefore, he prayed to set aside the same. 8. Learned counsel for respondent/plaintiff supported the impugned order and prayed for dismissal of the appeal. 9. The following question arises for determination: Whether the first appellate Court is justified in remanding the matter to the trial Court for fresh consideration of the case? 10. My finding on the above point is in the negative for the following reasons. - 8 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 11. To appreciate the contentions of the parties, it is necessary to refer Order 41 Rule 23 of CPC which enables the appellate Court to remand the matter. Order 41 Rule 23 of CPC reads as under: “Order 41 of the Code provides for appeals from original decrees. The Code empowers the appellate court to order remand in three situations. These three situations are covered by Order 41 Rule 23, Order 41 Rule 23-A and Order 41 Rule 25 which read as under: “23.Remand of case by appellate court.—Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.” 23-A. Remand in other cases.—Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the - 9 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 appellate court shall have the same powers as it has under Rule 23. 25. Where appellate court may frame issues and refer them for trial to court whose decree appealed from.— Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate court or extended by it from time to time.” 12. It is also necessary to refer to Order 41 Rule 33 CPC. “33. Power of Court of Appeal. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in - 10 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.” 13. The first appellate Court in the impugned judgment considered the trial Court judgment and held that the trial Court did not assign reasons for not answering issue Nos.3 to 6. According to Order 20 CPC it is the duty of the trial Court to answer all the issues and in this case the trial Court has not answered the said issues. Therefore the first appellate Court set aside the judgment. 14. Looking to the pleadings of the parties, the material issue in this case is issue Nos.1 and 2. As rightly submitted by the learned counsel for the appellant, plaintiff has not challenged the judgment and decree passed in O.S. No. 333/2018 on the ground that the trial Court has not answered issue Nos.3 to 6. Her grievance - 11 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 was the trial Court ought to have answered issue No.1 in her favour and granted relief as prayed by her. When the parties have no grievance about not answering of the issues, unnecessarily the first appellate Court on that ground remanded the matter to the trial Court, that is not tenable and not in compliance with Order 41 Rule 23 and 25 of CPC. Under Order 41 Rule 24 CPC the first appellate Court itself could have decided the said issue since evidence is already available on record. 15. If we consider issue Nos.3 to 5, those issues are nothing but part of issue No.2. The trial Court could have framed another issue instead of issue Nos.2 to 5. Issue Nos.3 to 5 are consequence of earlier partition of the year 2005. Under these circumstances not answering the said issue, would not affect rights of the litigants of this case. Therefore said finding of the first appellate Court is erroneous. 16. As rightly submitted by the learned counsel for the appellant, both sides have not filed any application - 12 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 seeking for additional evidence. There were sufficient evidence available on record to decide the case on merits. When such is the fact, remanding of the matter for recording of additional evidence, if any, is unwarranted. It will lead to much more delay in disposal of the case. Admittedly this litigation is pending for the last 13 years that too a simple suit for partition. Therefore the finding of the learned first appellate Court that to record additional evidence the matter was remanded to the trial Court is also erroneous and unwarranted. 17. The first appellate Court in its judgment highlighted deformities or shortcomings of the trial Court. It is pertinent to note that order 41 Rule 33 CPC referred above, first appellate Court has all the powers as that of a trial Court, to reconsider the case and reappraise the material available before it. Therefore, on the basis of available materials the first appellate court could have decided the matter on merits in accordance with law. But it failed to do so and without proper re-appreciation of the - 13 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 evidence, held that the trial judge has committed error. Therefore matter is to be remanded to the trial Court. The said observation of the first appellate Court is erroneous. In view of these reasons the findings of the first appellate Court needs to be set aside and matter needs to be remanded to the first appellate Court with a direction to decide the appeal on merits on the basis of available evidence on record. For the above said discussion, the question raised above is answered in the negative. This Court proceed to pass the following order: ORDER (i) The appeal is allowed; (ii) The judgment and decree dated 26.04.2019, passed in R.A. No. 3/2019 is set aside. R.A. No. 3/2019 is restored. The matter is remanded to the Principal Senior Civil Judge & JMFC, Mudhol, to re- hear the appeal and decide the matter on merits in accordance with law. - 14 - NC: 2025:KHC-D:4297 MSA No. 100081 of 2019 Records secured from both the Court shall be transmitted to the respective Courts with copy of this judgment. Both the side parties shall appear before first appellate Court on 06.06.2025 without expecting notice to appear. Sd/- (UMESH M ADIGA) JUDGE bvv/ CT-AN List No.: 1 Sl No.: 13