- 1 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS SECOND APPEAL NO. 100036 OF 2021 (RO) BETWEEN: 1. SMT. NEELAMMA @ LAXMI W/O. BASAVARAJ HADAPAD, AGE 42 YEARS, OCC: HOUSE HOLD WORK, R/O. MALLAPPA S/O. BHIMARAYA HADAPAD, R/O. GOGI PETH, POST: GOGI, TQ. SHAHAPUR, DIST. YADAGIRI. 2. PRASHANT S/O. BASAVARAJ HADAPAD, AGE 15 YEARS, OCC: STUDENT. 3. BASAMMA D/O. BASAVARAJ HADAPAD, AGE 17 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER APPELLANT NO.1 NEELAMMA @ LAXMI W/O. BASAVARAJ HADAPAD. …APPELLANTS (BY SRI. MALLIKARJUN C. HUKKERI, ADVOCATE) AND: SRI. MAHADEVAPPA S/O. SHIVAPPA HADAPAD, AGE 68 YEARS, OCC: RETIRED, R/O. SECTOR NO.30, PLOT NO.179, NAVANAGAR, TQ. BAGALKOT, DIST. BAGALKOT. …RESPONDENT (BY SRI. V. P. VADAVI, ADV. FOR SOLE RESPONDENT) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER 43 OF RULE 1(u) OF CPC, PRAYING TO CALL THE RECORDS AND SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE 1ST ADDL. SENIOR CIVIL JUDGE AND J.M.F.C, BAGALKOT IN R.A. NO. 28/2019 DATED 20.04.2021 BY ALLOWING THIS APPEAL AND CONFIRM THE TRAIL COURT JUDGMENT AND DECREE DATED 04.09.2019 PASSED IN O.S. NO.251/2011 BY THE ADDL. CIVIL JUDGE BAGALKOT AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. This appeal is by the defendant Nos.1A to 1C in O.S.No.251 of 2011 on the file of the Addl. Civil Judge, Bagalkot. They have challenged the judgment and decree passed by the first appellate Court in R.A.No.28 of 2019 dated 20.04.2021, passed by the learned I Addl.Senior Civil Judge and JMFC, Bagalkot, remanding the matter to the trail Court to give an opportunity to lead further evidence to both the sides, in respect of execution of the Will and other aspect of the suit. 2. I refer the parties as for per their ranking before the trial Court. 3. To dispose of this appeal, brief facts of the case are that the plaintiff contend that his brother one Laxman @ Sindhur died on 30.12.2000 and his wife Smt.Renuka died on 29.11.2002. Both died issue less. The suit property was belonging to the said Laxman @ Sindhur and Smt.Renuka. Deceased-defendant had taken away title - 3 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 deeds and other property records of said Laxman and Renuka. He tried to alienate the suit property. Plaintiff is the natural heir of Laxman. He is entitled to succeed to the property left by Laxman and Renuka. Therefore, he prayed his relief of declaration, to declare that he is the legal heir of deceased Laxman @ Sindhur and he is entitled to inherit the suit property by way of succession. 4. Defendants contended before the trial Court that after the death of Laxman, his wife Renuka became the absolute owner of the suit property. Renuka adopted deceased-defendant and thereafter the said Renuka executed registered Will bequeathing the suit property in favour of deceased-defendant. Deceased-defendant had been suffering from ill-health. For his treatment, his wife and children spent huge amount. In view of the same, they agreed to sell the said property for Rs.1,50,000/- to one Suresh Lamani and defendants also executed GPA in favour of said Suresh. Defendants have been in possession and enjoyment of the suit property as owner of the same. - 4 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 Plaintiff has no right over the property. Therefore prayed for dismissal of the suit. 5. That trial Court framed following issues: 1. Whether the plaintiff proves that he is the only legal heir of deceased Sindhur @ Laxman and Renuka? 2. Whether the defendant proves that Renuka has adopted Basavaraj (deceased defendant No.5) and further proves that she has executed the will in favour of Basavaraj? 3. Whether suit is bad for non-joinder of necessary party? 4. Whether plaintiff is entitled for the relief sought for? 5. To What order or decree? 6. Plaintiff to prove his case examined himself as PW1 and marked 4 documents as per Exs.P1 to P4. Defendant No.1A was examined as DW1 and defendants marked 8 documents as per Exs.D1 to D8. 7. After hearing both the parties and appreciating the material available on record, trial Court answered - 5 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 issue No.1 in the affirmative, issued No.2 partly in affirmative, issue Nos.3 and 4 in the negative, issue No.5 as per the final order and accordingly the suit was dismissed. 8. The plaintiff challenged the said judgment and decree before the first appellate Court i.e., the I Addl. Senior Civil Judge and JMFC, Bagalkot in R.A.No.28 of 2019. The first appellate Court after hearing both the parties, felt that defendants have contended that Renuka had executed Will as per Ex.D2 and the said Will was marked through DW1. To prove the Will, it was necessary to examine the witnesses of the Will, but the defendants did not lead evidence of attesting witness. Therefore the first appellate Court answered issue No.2 erroneously. In view of these reasons, it is necessary to remand the matter to the trial Court for re-consideration of the matter. Accordingly the first appellate Court by its judgment and decree dated 20.04.2021 allowed the appeal and operative portion of the judgment of the first appellate Court is as under: - 6 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 “The appeal filed by the appellant Under Order 41 Rule 1 R/W Sec.96 of CPC is hereby allowed. The judgment and decree passed in O.S. No.251/2011 dated 04.09.2019 passed by the Learned Addl. Civil Judge (Jr. Dn.) and JMFC Bagalkot is hereby set-aside. The O.S.No.251/2011 is hereby remanded back to the lower court for re-appreciation of evidence by both the parties in respect of execution of the will. The lower court shall give an opportunity to lead further evidence both the parties in respect of execution of the will and other aspects in the suit. The parties are hereby directed to appear before the lower court when the lower court issued notices to the said parties. By looking into facts and circumstances involved in this case no order as to costs. Draw decree accordingly. Send back Lcrs to the lower court along with copy of judgment as soon as possible.” - 7 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 9. Being aggrieved by the same, defendants preferred this appeal. 10. Heard the arguments of learned advocates appearing for both the parties. 11. Learned advocate for the appellants submits that the Will was not at all relevant document before the trial Court. Relief sought by the plaintiff was not at all connected with the Will executed by Renuka in favour of deceased - Basavaraj and both the parties had not sought for any such prayer before the trial Court and no witnesses were examined on their behalf. The first appellate Court could have disposed the matter on the basis of available evidence on record. The first appellate Court unnecessarily remanded the matter to the trial Court. He further contends that on reading of the plaint, it does not show that Will had any relevancy to grant the relief prayed in the suit. Under these circumstances remanding the matter to the trial Court is unnecessary and prays to set aside the same. - 8 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 12. Learned counsel for the respondent submits that the first appellate Court committed an error to direct the trial Court to record evidence afresh. The first appellate Court ought to have directed the trial Court to record additional evidence, if any, and whatever evidence already recorded and available could be accepted and continued. Therefore with this respect, it is erroneous otherwise there was no error in the said finding. 13. Learned advocate for the respondent further submits that right of the plaintiff was denied on the ground of Will executed by Renuka in favour of deceased- defendant. In view of the same, Ex.D2 have relevancy to decide the matter in dispute. Therefore the first appellate Court has rightly considered the same and remanded the matter to the trial court, which does not call for any interference by this Court. 14. The only question arises for determination of this Court is “whether remanding of the matter to the trial court is justifiable?” - 9 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 15. To answer the said question, it is necessary to refer Order XLI Rule 23 CPC, which reads 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, which directions to re-admit 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 all just exceptions, be evidence during the trial after remand.” 16. On reading of Order XLI Rule 23 CPC, referred above, the trial Court unnecessarily without justifiable reason and without there being any sufficient ground, exercised power under Order XLI Rule 23 CPC and set aside the judgment passed by the trial Court and remanded the matter to the trial Court. - 10 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 17. Undisputedly, both the appellants as well as the respondent i.e., plaintiff and defendants had not filed any application under Order XLI Rule 27 CPC seeking permission to lead additional evidence on record, on there behalf. The Will was propounded by the defendants and according to settled proposition of law, it is burden on the propounder of the Will to prove it. Defendants have not led evidence before the trial Court in respect of the Will and even they have not filed any application seeking such permission from the first appellate Court to record additional evidence. Moreover defendants have challenged the order of remand in the present appeal. Therefore one can infer that defendants are not at all interested to lead additional evidence in respect of the said Will. The relief sought by the plaintiff is to declare that he is Class-II heir of deceased-Laxman @ Sindhur and his wife Smt.Renuka. There is no whisper regarding the Will executed by Renuka in favour of deceased Basavaraj. Under the circumstances, there was no reason for the first appellate Court to hold that leading additional evidence by the parties is very - 11 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 much required and the first appellate Court could have decided the matter on the basis of available material on record and decide rights of the parties. However, without considering the said fact and without looking to the pleading of the parties and without there being any such request made by the parties, the first appellate Court held that examination of the witness to the Will is required to prove the same and hence remanded the matter to the trial Court. The said finding of the first appellate Court is erroneous, arbitrary and perverse, hence needs to be interfered by this Court. 18. For the above said reason, point No.1 is answered in the negative and proceed to pass the following: ORDER i. Appeal is allowed. ii. Parties to bear their own cost. iii. The judgment and decree passed in R.A.No.28 of 2019 dated 20.04.2021 remanding the matter to the trial Court is set aside. - 12 - NC: 2025:KHC-D:5288 MSA No. 100036 of 2021 iv. The first appellate Court shall consider the available pleading and material on record and decide the matter on merits. v. Send back the TCR to the trial Court along with copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 10