- 1 - NC: 2025:KHC-D:1558 MSA No. 100095 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO.100095 OF 2024 BETWEEN: SIDDAYYA S/O. CHANNAYYA HUCHCHAPPAYYANAMATH, AGED ABOUT 54 YEARS, OCC: AGRICULTURE, R/O: BILAGI, TQ: BILAGI, DIST: BAGALKOT-587116. …APPELLANT (BY SRI SANTOSH B.MANE, ADVOCATE) AND: 1. VEERANNA HUCHCHAYYA HUCHCHAPPAYYANAMATH, AGED ABOUT 54 YEARS, OCC: AGRICULTURE, 2. DANAYYA S/O. HUCHCHAYYA HUCHCHAPPAYYANAMATH, AGED ABOUT 48 YEARS, OCC: AGRICULTURE, (BOTH ARE R/O. BILAGI, TQ: BILAGI, DIST: BAGALKOT-587116.) 3. IRAYYA S/O. SIDDAYYA HUCHCHAPPAYYANAMATH, AGED ABOUT 71 YEARS, R/O: KUNCHANUR ROAD, JAMAKHANDI, DIST: BAGALKOT-587301. …RESPONDENTS (BY SRI VISHWANATH HEGDE, ADVOCATE FOR R1 AND R2; R3-DELETED) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER SECTION 43 RULE 1 (U) OF CPC, PRAYING TO, SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 11.01.2024 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BAGALKOT, IN RA NO.48/2020 WHEREBY REMANDING THE MATTER BY SETTING ASIDE THE WELL CONSIDERED JUDGMENT AND DECREE DATED 20.03.2020 PASSED BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BILAGI, IN OS NO.49/2018, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1558 MSA No. 100095 of 2024 THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This Miscellaneous Second Appeal is filed by defendant No.2 calling in question the judgment and decree dated 11.01.2024, passed in R.A.No.48/2020, by the Principal District and Sessions Judge, Bagalkot, thereby the judgment and decree dated 20.03.2020, passed in O.S.No.49/2018 passed by the Senior Civil Judge and JMFC, Bilagi, is set aside and remanded the case to the trial Court for fresh consideration. 2. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 3. The plaintiffs have filed a suit for partition, possession and injunction claiming ½ share in the suit properties by pleading that the suit properties are ancestral and joint family properties. - 3 - NC: 2025:KHC-D:1558 MSA No. 100095 of 2024 4. The defendants have filed written statement and have taken contention that the suit is hit by principles of res-judicata. On the basis of the pleadings, the trial Court framed issue No.5 regarding whether the suit is hit by principles of res-judicata and issue No.6 is framed in respect of maintainability of the suit in view of Order 2 Rule 2 of CPC. 5. The Trial Court held that the suit filed by the plaintiff is hit by principles of res-judicata and the suit is not maintainable in view of Order 2 Rule 2 of CPC. 6. The said order is challenged 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 for fresh consideration in accordance with law after receiving evidence and decide on all the issues framed in the suit. This order is challenged by the defendant No.2 in this appeal. - 4 - NC: 2025:KHC-D:1558 MSA No. 100095 of 2024 7. Heard the arguments of learned counsels appearing for both the sides and perused the material placed on record. 8. The first appellate Court has assigned reason that when the trial Court has framed issues that ought to have been considered all the issues on merits; but only on the pleadings, whether the suit is by principles of res-judicata and regarding maintainability under Order 2 Rule 2 cannot be decided. Therefore, remanded the case to the Trial Court for fresh consideration. 9. This Court has to consider whether the remand order passed by the First Appellate Court is proper or not. When the defendants have taken contention that the suit is hit by principles of res-judicata, the same has to be adjudicated after receiving evidence from the parties; only on the basis of the pleadings, the aspect of res-judicata cannot be decided. The defendants might have pleaded in their written statement with regard to res-judicata, but in this regard the burden is on the defendants to prove the aspect of res-judicata by leading evidence. But the trial Court - 5 - NC: 2025:KHC-D:1558 MSA No. 100095 of 2024 without receiving evidence and only on the basis of pleadings and written statement has passed the order dismissing the suit as hit by principles of res-judicata. This approach of the trial Court is not correct. The aspect of res-judicata can be considered after receiving evidence as to how the suit is hit by res-judicata. It can be decided only after receiving the evidence in the facts and circumstances involved in the case. 10. Further, the trial Court has not considered issue No.6 on its merit. The trial Court observed that on the reason that while answering issue No.5 holding that the suit is hit by principles of res-judicata, therefore, the question of consideration of other issued does not arise. Therefore, only on answer in issue No.5, the trial Court has dismissed the suit as not maintainable as the suit is hit by principles of res- judicata. 11. Upon considering the matter in this appeal, consideration of aspect that the suit is hit by principles of res-judicata, it cannot be decided only on the basis of pleadings of the parties. The person who asserts that the suit is hit by principles of res-judicata, he has to give evidence in - 6 - NC: 2025:KHC-D:1558 MSA No. 100095 of 2024 proving how the suit is hit by principles of res-judicata. This aspect cannot be decided only on the basis of the pleadings or material annexed to the written statement. There is no order by the trial Court to the effect that the annexed material are considered. Therefore the entire venture of the trial Court while answering issue No.5 is only believing the pleadings in the written statement and that is not permitted. Therefore, the remand order passed by the First Appellate Court is correct and justifiable one. Therefore the appeal is found to be devoid of merit. Hence, the appeal is liable to be dismissed. Accordingly the appeal is dismissed. 12. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM-para 1 to 8. MRK-para 9 to end. CT: UMD. List No.: 2 Sl No.: 3