- 1 - HC-KAR NC: 2025:KHC-D:7593 MSA No. 100089 of 2025 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 12TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO. 100089 OF 2025 (RO) BETWEEN: PANDAPPA S/O VENKAPPA CHAVALAR, AGE: 78 YEARS, OCC: AGRICULTURE, R/O: HOUSE NO.56, NEAR KEB STATION, RAMDURG, DIST: BELAGAVI-591 123. … APPELLANT (BY SRI ANAND KUMAR ASHTEKAR, ADVOCATE.) AND: 1. HEMA @ HANAMAVVA D/O PANDAPPA CHAVALAR, AGE: 47 YEARS, OCC: AGRICULTURE AND PRIVATE SERVICE, R/O: HOUSE NO.56, NEAR KEB STATION, RAMDURG, DIST: BELAGAVI-591 123. 2. VENKAVVA W/O PANDAPPA CHAVALAR, AGE: 69 YEARS, OCC: HOUSEHOLD, R/O: HOUSE NO.56, NEAR KEB STATION, RAMDURG, DIST: BELAGAVI-591 123. 3. VENKAPPA S/O PANDAPPA CHAVALAR, AGE: 49 YEARS, OCC: AGRICULTURE, R/O: HOUSE NO.56, NEAR KEB STATION, RAMDURG, BELAGAVI-591 123. 4. SATISHKUMAR @ SATISH S/O PANDAPPA CHAVALAR, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: HOUSE NO.56, NEAR KEB STATION, RAMDURG, BELAGAVI-591 123. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7593 MSA No. 100089 of 2025 5. PRAKASH S/O PANDAPPA CHAVALAR, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: HOUSE NO.56, NEAR KEB STATION, RAMDURG, BELAGAVI-591 123. 6. VIDYAWATI W/O GIREYAPPA KURADAGI, AGE: 51 YEARS, OCC: HOUSEHOLD, R/O: HOUSE NO.56, NEAR KEB STATION, RAMDURG, BELAGAVI-591 123. 7. MANJULA SAKANANDAGI, AGE: 43 YEARS, OCC: HOUSEHOLD, R/O: HOUSE NO.56, NEAR KEB STATION, RAMDURG, BELAGAVI-591 123. 8. MR. SARTHAK S/O VENKAPPA CHAVALAR, AGE: 14 YEARS, OCC. STUDENT, R/O: H.NO.56, NEAR KEB STATION, RAMDURG, TQ: RAMDURG, DIST: BELAGAVI. (SINCE MINOR REPRESENTED BY HIS NATURAL FATHER RESPONDENT NO.3) … RESPONDENTS (BY SRI S.B. DODDAGOUDAR, ADVOCATE FOR R1) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER 43 RULE 1(U) OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 22.02.2025 PASSED IN R.A.NO.3/2023, ON THE FILE OF THE SENIOR CIVIL JUDGE, RAMDURG AND CONSEQUENTLY RESTORE THE JUDGMENT AND DECREE DATED 17.03.2023 PASSED IN O.S.NO.28/2021 ON THE FILE OF THE CIVIL JUDGE AND JMFC, RAMDURG, REJECTING THE PLAINT FILED THEREIN BY THE PLAINTIFF AND ETC.,. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:7593 MSA No. 100089 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) The defendant No.1 has preferred the appeal questioning the judgment and decree dated 22.02.2025, passed by the Senior Civil Judge, Ramdurg, in R.A.No.3/2023. 2. By the impugned order, the First Appellate Court has set aside the order dated 17.03.2023, passed by the Civil Judge and JMFC, Ramdurg, in O.S.No.28/2021, under Order VII Rule 11(a) and (d) of CPC and remanded the case to the trial Court to decide on merits. 3. The plaintiff has filed a suit for partition. The appellant/defendants have filed the written statement and contended that there was prior partition and is admitted by the plaintiff. Thus, there is no cause of action and also the suit is barred by law. Hence an application was filed under Order VII Rule 11(a) and under Order VII Rule - 4 - HC-KAR NC: 2025:KHC-D:7593 MSA No. 100089 of 2025 11(d) of the CPC. The trial Court has allowed the said application and rejected the plaint. 4. Questioning the same, the plaintiff has preferred appeal before the First Appellate Court and the First Appellate Court has set aside the order passed by the trial Court and remanded the case to the trial Court on the reason that regarding previous partition adjudication is needed. Hence, it cannot be said that there is no cause of action and just because on the proviso to Section 6 of the Hindu Succession Act, the suit cannot be rejected as barred by law, accordingly remanded. 5. The principal contention of the learned counsel for the appellant/defendant No.1 is that there was previous partition in the year 1991 and therefore there is no cause of action to file suit and also as per provision to Section 6 of Hindu Succession Act, suit is barred by law. 6. Whether there was previous partition in the year 1991 and what was the effect of partition are all the - 5 - HC-KAR NC: 2025:KHC-D:7593 MSA No. 100089 of 2025 questions to be considered as disputed facts in the suit. Previous partition alone cannot make the suit as barred by law invoking Order VII Rule 11(d) of CPC. Further, learned counsel for respondent/plaintiff submitted that the plaintiff at that time was minor and minor’s interest was not protected. 7. When all these factual disputed facts are involved in the suit, the suit ought not to have been rejected only upon the provisions under Order VII Rule 11(a) and Order VII Rule 11(d) of CPC. 8. Therefore, the First Appellate Court is correct in setting aside the order of trial Curt and remanding the case to the trial Court. Therefore the appeal is found to be devoid of merits. Therefore the appeal is liable to be dismissed. Accordingly, the appeal is dismissed. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT: BCK LIST NO.: 1 SL NO.: 41