- 1 - HC-KAR NC: 2025:KHC:32220 MSA No. 136 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO.136 OF 2023(RO) BETWEEN: 1. THIPPESHAPPA S/O LATE THIMMAPPA, AGED ABOUT 73 YEARS, 2. BHEERAPPA S/O LATE THIMMAPPA, AGED ABOUT 68 YEARS, 3. VENKATESHAPPA S/O LATE THIMMAPPA, AGED ABOUT 58 YEARS, ALL ARE AGRICULTURISTS, AND RESIDENTS OF KUNTA KENCHAIAHNAHATTI VILLAGE, M G DIBBA POST, KASABA HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT -577 527 …APPELLANTS (BY SRI BALARAJ A C, ADVOCATE) AND: 1. SMT INDHIRAMMA W/O KARIYAPPA, D/O LATE BHOGAPPA, AGED ABOUT 63 YEARS, AGRICULTURIST AND HOUSE HOLD WORK, R/O MACHENAHALLI VILLAGE, M G DIBBA POST, KASABA HOBLI, HOSADURGA TALUK -577527 Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32220 MSA No. 136 of 2023 2. SMT BASAMMA W/O REVANASIDDESHWARA SWAMY T, RETIRED OFFICIAL D/O LATE BHOGAPPA, AGED ABOUT 67 YEARS, AGRICULTURIST AND HOUSE HOLD WORK, PRESENTLY R/O NEAR JNANAVAHINI SCHOOL, VIJAYANAGARA EXTENSION, HOSADURGA TALUK 577527 3. SRI HANUMANTHAPPA S/O LATE BHOGAPPA, AGED ABOUT 94 YEARS R/O KUNTA KENCHAIAHNAHATTI VILLAGE, KASABA HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT -577527 4. SRI T KRISHNAMURTHY S/O LATE SANAN THIMMAPPA, AGED ABOUT 63 YEARS, RETD. ASSISTANT EXECUTIVE ENGINEER, R/O NAVACHETHANA NILAYA, BEHIND OLD COURT, HOSADURGA -577527 5. SMT GIRIJAMMA W/O KANCHAUAHARA ANJINAPPA, D/O LATE SANNA THIMMAPPA, AGED ABOUT 58 YEARS, HOUSE HOLD WORK, R/O KAREHALLI VILLAGE, MATHODU HOBLI, HOSADURGA TALUK 577527 6. SMT HONNAMMA W/O K T KRISHNAMURTHY, (POLICE DEPARTMENT) S/O LATE SANNA THIMMAPPA, AGED ABOUT 53 YEAS, HOUSE HOLD WORK, - 3 - HC-KAR NC: 2025:KHC:32220 MSA No. 136 of 2023 R/O POLICE QUARTERS, HOLALKERE TOWN -577527 7. SMT KAMALAMMA TEACHER, W/O T SHEKHARAPPA, D/O LATE SANNA THIMMAPPA, AGED ABOUT 49 YEARS, R/O VINAYAKA EXTENSION, HOSADURGA TOWN 577527 8. SRI T MANJUNATHA S/O LATE SANNA THIMMAPPA, AGED ABOUT 48 YEARS, AGRICULTURIST, R/O KUNTAKENHAIAHNAHATTI, KASABA HOBLI, HOSADURGA TALUK -577527 9. SRI RAMAPPA S/O HANUMANTHAPPA, AGED ABOUT 64 YEARS, AGRICULTURIST, R/O KUNTAKENHAIAHNAHATTI, KASABA HOBLI, HOSADURGA TALUK CHITRADURGA DISTRICT -577527 10. SMT VINODAMMA W/O LATE KARIYAPPA, AGED ABOUT 61 YEARS, AGRICULTURIST, R/O NO.198 NANNESHWARASWAMY TEMPLE ROAD, ENAKAL, MYSORE -577017 11. SMT K KAVITHA D/O LATE KARIYAPPA, AGED ABOUT 42 YEARS, BAMS DOCTOR 12. SMT K PRATHIMA D/O LATE KARIYAPPA, - 4 - HC-KAR NC: 2025:KHC:32220 MSA No. 136 of 2023 AGED ABOUT 38 YEARS, 13. SMT K NAYANA D/O LATE KARIYAPPA, AGED ABOUT 36 YEARS, 14. SRI K MUKUNDA S/O LATE KARIYAPPA, AGED ABOUT 34 YEARS, RESPONDENTS 11 TO 14 ARE RESIDENTS OF C/O D/O VINODAMMA, FIRST DIVISION CLERK, MAHANAGARA PALIKE, MYSORE CORPORATION OFFICE, KUVEMPU NAGAR, MYSORE, MYSORE DISTRICT -577517 …RESPONDENTS (BY SRI KUMARA SWAMY N, ADVOCATE FOR R1 AND R2 - Absent; SRI R.V.JAYAPRAKASH, ADVOCATE FOR R4 AND R9; SRI M.MUNIRAJU, ADVOCATE FOR R5 TO R8 AND R10 TO R14; VIDE ORDER DATED 08.08.2024, R9 TO R14 ARE LRS. OF DECEASED R3) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 24.11.2022 PASSED IN R.A.No.06/2020 ON THE FILE OF THE SPECIAL IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 13.12.2019 PASSED IN OS No.7/2018 (OLD NO.24/2002) ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, HOSADURGA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC:32220 MSA No. 136 of 2023 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Balaraj A.C., learned counsel for the appellant and Sri R.V. Jayaprakash, learned counsel for respondent Nos.4 and 9. 2. Defendants 9 to 11, who had the benefit of allowing their counter claim and granting 1/4th share in the suit properties, are the appellants challenging the remand of the suit in R.A.No.6/2020 filed by defendants 1 to 8. 3. The learned Judge in the First Appellate Court noted that though there was a plea taken by the defendants with regard to the limitation, no proper issue was framed. 4. Likewise, the question of previous partition having not believed by the trial Court, additional documents were placed by defendant Nos.1 to 8 under Order XLI Rule 27 CPC, which needs to be considered to effectively decide the real lis between the parties, allowed the appeal of the defendants Nos.1 to 8 and remitted the matter to the trial Court for fresh disposal in accordance with law, after framing appropriate issue and after considering the additional evidence. - 6 - HC-KAR NC: 2025:KHC:32220 MSA No. 136 of 2023 5. Same is called in question by defendant Nos.9 to 11 in this appeal, contending that open remand passed by the learned Judge in the First Appellate Court is incorrect in view of Order XLI rule 23 CPC. 6. It is further argued that before exercising the power under Order XLI rule 23A CPC in remitting the matter to the trial Court, learned Judge in the First Appellate Court did not consider to entertain the additional evidence and frame additional issue in the First Appellate Court itself and adjudicate the matter. 7. Per contra, Sri R.V. Jayaprakash, who represents the contesting respondents in this appeal, who are defendant Nos.2(a) and 9 and appellant Nos.2 (a) and 3 before the First Appellate Court, supports the impugned judgment. 8. Plaintiff is served with the notice and has engaged the services of Sri Kumaraswamy N, learned counsel, who did not choose to contest this appeal. 9. Taking note of the fact that the First Appellate Court allowed the additional evidence to establish the previous partition and also taking note of the fact that no proper issue was framed on the question of limitation, remitting the matter - 7 - HC-KAR NC: 2025:KHC:32220 MSA No. 136 of 2023 to the trial Court for fresh disposal by permitting the parties to place additional evidence on record in the considered opinion of this Court has not resulted in grave injustice so as to interfere with the order of the Court. 10. However taking note of the fact that the suit is of the year 2018 and the question of previous partition alone is to be established by the defendants by placing necessary evidence wherein the present appellants who are defendant Nos.9 to 11 are also entitled to contest and place additional rebuttal evidence, if any, directing the trial Court to dispose of the suit as expeditiously as possible would meet the ends of justice. 11. Accordingly, the following ORDER (i) Miscellaneous Second Appeal stands disposed of, (ii) The trial Court is directed to conclude the suit as early as possible, but not later than 31.03.2026. Sd/- (V SRISHANANDA) JUDGE MR