- 1 - HC-KAR NC: 2025:KHC-D:7987 MSA No. 100064 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO. 100064 OF 2022 (RO) BETWEEN: 1. LINGARAJA S/O ANDANAPPA HEBLI @ HEBBALI, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: HABALKATTE-583 280, TQ: KUSHTAGI, DIST: KOPPAL. 2. AKKAMAHADEVI W/O LINGARAJA HEBLI @ HEBBALI, AGE: 38 YEARS, OCC: AGRICULTURE, R/O: HABALKATTE-583 280, TQ: KUSHTAGI, DIST: KOPPAL. … APPELLANTS (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: BASAVVA W/O MAHANTHAPPA HEBLI @ HEBBALI, AGE: 83 YEARS, OCC: AGRICULTURE, R/O: HABALKATTE-583 280, TQ: KUSHTAGI, DIST: KOPPAL. … RESPONDENT (BY SRI. K.H. PATIL AND SRI. G.V. BHAT, ADVOCATES) THIS MSA IS FILED UNDER SECTION 43 RULE 1(U) OF THE CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.02.2022 PASSED IN RA NO.08/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE KUSHTAGI BY ALLOWING THE PRESENT APPEAL BY CONFIRMING THE JUDGMENT AND DECREE DATED 02.11.2016 PASSED IN O.S. NO.93/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KUSHTAGI. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7987 MSA No. 100064 of 2022 THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by defendants No.2 and 4 challenging the order passed in RA No.8/2017 dated 19.2.2022 by the learned Senior Civil Judge, Kushtagi1, thereby the first appellate Court has remanded the case to the trial Court for fresh consideration. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the trial Court. 3. The plaintiff has filed suit for declaration, permanent injunction and also for possession. The suit was dismissed by the trial Court. Being aggrieved by the dismissal of the suit, the plaintiff has preferred an appeal before the first appellate Court. The first appellate Court without considering the case on merits has allowed the appeal by setting aside the judgment and decree of the trial Court and remanded the case to the trial Court for fresh consideration by giving liberty to 1 Hereinafter referred to as ‘first appellate Court’ - 3 - HC-KAR NC: 2025:KHC-D:7987 MSA No. 100064 of 2022 both the parties to lead their evidence afresh. This order is under challenge in this second appeal. 4. DW1 is the defendant No.2. DW2 is the attesting witness to the Will. The plaintiff has not cross-examined DW1 and DW2. 5. Learned counsel fro the appellant submitted that DW2 is the attesting witness to the Will stated to have been executed by Mahantappa (husband of the plaintiff) in favour of defendant No.2. But PW1/plaintiff in her cross-examination admitted that Mahantappa had executed the Will in favour of defendant No.2, therefore, there was no necessity in cross- examining DW2. Further, DW1 is the beneficiary of the Will, but in view of admission of PW1/plaintiff in the cross- examination about execution of Will, cross-examination of DW1 is also not necessary. Hence, submitted that remanding the case to the trial Court is not necessary, in view of admission by the plaintiff/PW1 regarding executing of the Will in favour of defendant No.2. Hence, prays to allow the appeal by setting aside the order passed by the first appellate Court by confirming the judgment and decree passed by the trial Court. - 4 - HC-KAR NC: 2025:KHC-D:7987 MSA No. 100064 of 2022 6. On the other hand, learned counsel for the respondent/plaintiff submitted that DW1 and DW2 were not cross-examined by the plaintiff, therefore, one opportunity be given to the plaintiff for cross-examination of DW1 and DW2, otherwise, judgment of the trial Court would become one sided. Hence, prays to dismiss the appeal by confirming the order passed by the first appellate Court. 7. The plaintiff has filed suit for declaration that she has inherited the suit schedule property through her husband, whereas defendants No.2 and 4 are claiming that Mahantappa had executed the Will in favour of defendant No.2. Hence, suit filed by the plaintiff is liable to be dismissed. This is the rival claim between both the parties in the suit. Admittedly, the plaintiff has not cross-examined DW1, who is stated to be beneficiary of the Will stated to have been executed by said Mahantappa. DW2, who is attesting witness of the Will, is also not cross-examined. Though PW1/plaintiff in her cross- examination has admitted regarding execution of the Will, but even though it may not be necessary for cross-examination of DW2, however, cross-examination of DW1 is necessary. Therefore, the first appellate Court is correct in remanding the - 5 - HC-KAR NC: 2025:KHC-D:7987 MSA No. 100064 of 2022 case to the trial Court for fresh consideration enabling the plaintiff to cross-examine DW1 and DW2. Therefore, the order of remand made by the first appellate Court does not require to be interfered with. Hence, appeal is liable to be dismissed. Accordingly, the appeal is dismissed. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE JTR CT:BCK LIST NO.: 1 SL NO.: 30