- 1 - NC: 2025:KHC-D:3099 MSA No. 100107 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO.100107 OF 2022 (RO) BETWEEN: 1. RAVINDRA S/O. VAMANRAO DESHPANDE, AGED ABOUT 57 YEARS, OCC. SERVICE, R/O. KILLA GALLI, BAGALKOT-587016, TQ. AND DIST. BAGALKOT. 2. ACHHUT S/O. VAMANRAO DESHPANDE, AGED ABOUT 57 YEARS, OCC. SERVICE, R/O. KILLA GALLI, BAGALKOT-587016, TQ. AND DIST. BAGALKOT. 3. PALLAVI W/O. PRALLAD DESHPANDE, AGED ABOUT 42 YEARS, OCC. HOUSEHOLD WORK, R/O. KILLA GALLI, BAGALKOT-587016, TQ. AND DIST. BAGALKOT. 4. PRADEEP S/O. BINDURAO DESHPANDE, AGED ABOUT 47 YEARS, OCC. NIL, R/O. NEAR MUNICIPALITY BILAGI-587166, DIST. BAGALKOT. SONABAI W/O. GOPAL DESHPANDE, AGED ABOUT 67 YEARS, OCC. HOUSEHOLD WORK, SINCE DECEASED DURING PENDENCY OF APPEAL BY LR’S APPELLANTS NO.5 AND 6. 5. ARUN S/O. GOPAL DESHPANDE, AGED ABOUT 42 YEARS, OCC: AGRICULTURE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3099 MSA No. 100107 of 2022 6. ANJU S/O. GOPAL DESHPANDE, AGED ABOUT 39 YEARS, OCC. AGRICULTURE, APPELLANTS 5 AND 6 ARE RESIDENTS OF PLOT NO.374, ANUGRAH HOUSE, KIRTHI NAGAR, B. BAGEWADI ROAD, BIJAPUR-586109. …APPELLANTS (BY SRI SANTOSH B.MANE, ADVOCATE) AND: HANAMANT S/O. DHANAPPA GANAGER, AGED ABOUT 52 YEARS, OCC. AGRICULTURE, R/O. FARM HOUSE IN SY NO.287/A WARD NO.1, BILAGI TALUK. BILAGI, DIST. BAGALKOT-587116. …RESPONDENT (BY SRI VISHWANATH HEGDE, ADVOCATE) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER SECTION 43 RULE 1 (U) OF CPC, PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 22.07.2022 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, BILAGI IN RA NO. 23/2018 WHEREBY ALLOWING THE REGULAR APPEAL FILED BY THE RESPONDENT AND REMANDING THE MATTER BACK TO THE TRIAL COURT FOR FRESH CONSIDERATION BY SETTING ASIDE THE WELL CONSIDERED JUDGMENT AND DECREE DATED 18.08.2018 PASSED IN OS NO.97/2010 BY THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT BILAGI, IN THE INTEREST OF JUSTICE AND EQUITY. THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:3099 MSA No. 100107 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This Miscellaneous Second Appeal is filed by the defendants calling in question the order dated 22.07.2022, passed in R.A.No.23/2018, by the Senior Civil Judge and JMFC, Bilagi, thereby the judgment and decree dated 18.08.2018, passed in O.S.No.97/2010 passed by the 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 plaintiff has filed a suit for declaration and consequential relief of injunction praying to declare that he is the predecessor owner of the suit property. The trial Court after considering the evidence led by both sides on merits, dismissed the suit of the plaintiff and decreed the counter claim of the defendants. The trial Court after appreciating evidence on record on merits, has delivered the judgment and decree in dismissing the suit and decreeing the counter claim. - 4 - NC: 2025:KHC-D:3099 MSA No. 100107 of 2022 4. Being aggrieved by it, the plaintiff has preferred the appeal in R.A.No.23/2018, before the First Appellate Court. The First Appellate Court has allowed the appeal and set aside the judgment and decree passed by the trial Court and remanded the matter to the trial Court for fresh consideration. The First Appellate Court has assigned reasons that since there are other two suits in O.S.Nos.96/2010 and 98/2010, pending and those two suits and the present suit are inter-connected to each other in respect of the similar property. Therefore, for consideration of all the three suits, the matter is remanded to trial Court after setting aside the judgment and decree passed by the trial Court. 5. The learned counsel for the appellants/defendants submitted that single appeal against dismissal of suit and decreeing the counter claim is not maintainable. Further submitted that, the other two suits in O.S.Nos.96/2010 and 98/2010 also having disposed off and against which, two regular appeals were filed and, in those cases also remand order was passed and second appeals have been preferred in this Court. Therefore, submitted that the first appellate Court ought to have considered the appeal on merits without - 5 - NC: 2025:KHC-D:3099 MSA No. 100107 of 2022 remanding the case and re-appreciating evidence on record in the facts and circumstances involved in the case. Therefore, submitted that remanding the matter to the trial Court is not correct. 6. On the other hand, the learned counsel for the respondent justified the order passed by the First Appellate Court. 7. The reasons assigned by the First Appellate Court are that other two suits in O.S.Nos.96/2010 and 98/2010 are pending. Therefore, remanded the suit in the present case for fresh consideration of the same on merits. But, it is submitted that, O.S.No.96/2010 and O.S.No.98/2010 were also disposed off on merits by the trial Court. When this being the fact, remanding the suit O.S.No.97/2010 in the present case does not arise. Furthermore, against the judgment and decree passed in O.S.No.96/2010 and O.S.No.98/2010, two appeals were preferred before the First Appellate Court and in those two appeals, the judgment and decree passed in the suits were set aside and remanded the matter to the trial Court for fresh consideration, against which, two Miscellaneous Second - 6 - NC: 2025:KHC-D:3099 MSA No. 100107 of 2022 Appeals are preferred in this Court i.e., in MSA No.100111/2022 and MSA No.100108/2022. When the only reason given by the First Appellate Court is that the O.S.No.96/2010 and 98/2010 were pending and remanded the suit O.S.No.97/2010, but subsequently, disposal of O.S.Nos.96/2010 and 98/2010, remanding the case to the trial Court to consider all the three suits together does not arise. Therefore, the order passed by the First Appellate Court in setting aside the judgment and decree passed in the present suit and remanding the case to the trial court is liable to be set aside. It is hereby directed the first appellate Court to consider the appeal on its merit to be considered as appellate Court after re-appreciating evidence on record without remanding, in accordance with law. Therefore, with these observations, the First Appellate Court shall consider the appeal in R.A.No.23/2018 on merits. Therefore, the impugned order passed by the first appellate Court is set aside. The appeal in R.A.No.23/2018 is remanded to the First Appellate Court for fresh consideration on merits after re-appreciating evidence on record being appellate court, in accordance with law. 8. Hence, I proceed to pass the following: - 7 - NC: 2025:KHC-D:3099 MSA No. 100107 of 2022 ORDER i. MSA No.100107/2022 is allowed. ii. The order dated 22.07.2022, passed in R.A.No.23/2018, by the Senior Civil Judge and JMFC, Bilagi, is set aside. iii. The appeal in R.A.No.23/2018 is remanded to the First Appellate Court for consideration on merits, as per law. iv. The appellants and respondents herein are directed to appear before the First Appellate Court on 10.03.2025 without expecting any notice from the Court. v. The First Appellate Court shall dispose off the appeal on merits within a period of three months from 10.03.2025. vi. All contentions of both the parties are left open. vii. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP/List No.: 1 Sl No.: 61