- 1 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 1ST DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS SECOND APPEAL NO.100116 OF 2019 (RO) BETWEEN: 1. SUJATA W/O CHANDRAHASA KODAGALI AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: HERUR, HUNGUND TALUK, BAGALKOT DISTRICT. 2. RAJASHEKHAR S/O CHANDRAHAS KODAGALI AGE: 22 YEARS, OCC: STUDENT, R/O: HERUR, HUNGUND TALUK, BAGALKOT DISTRICT. 3. SUSHMITA D/O CHANDRAHAS KODAGALI AGE: 20 YEARS, OCC: STUDENT, R/O: HERUR, HUNGUND TALUK, BAGALKOT DISTRICT. …APPELLANTS (BY SRI. S.B. HEBBALLI, ADVOCATE) AND: 1. SHIVANAGAPPA S/O CHANDRAPPA KODAGALI AGE: 65 YEARS, OCC: AGRICULTURE, R/O: HERUR, HUNGUND TALUK, BAGALKOT DISTRICT. 2. BRANCH OFFICE, VIJAYA MAHANTESH CO-OPERATIVE BANK, HUNGUND, BR. ILKAL, HUNGUND TALUK, BAGALKOT DISTRICT. …RESPONDENTS (BY SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR R1; SRI. PRAKASH N. HOSAMANI, ADVOCATE FOR R2) THIS MSA IS FILED UNDER ORDER 43 RULE 1 (U) OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS JUDGE BAGALKOT IN RA NO.12/2015 DATED 22.08.2019 AND CONFIRM THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC., HUNGUND IN OS NO.43/2011 DATED 31.01.2015 IN THE INTEREST OF JUSTICE. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.12 16:39:25 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 THIS MSA COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This appeal is filed by the appellants challenging the judgment and decree dated 22.08.2019 passed in R.A. No.12/2015 by the Principal District and Sessions Judge, Bagalkot. 2. For convenience, the parties are referred to based on their rankings before the trial Court. Respondent No.1 was the plaintiff and appellants and respondent No.4 were the defendants. 3. Brief facts leading rise to the filing of this Miscellaneous Second Appeal are as follows: 4. The plaintiff filed a suit against the defendants for declaration to declare that he is the absolute owner of the suit A schedule property and the transaction between - 3 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 deceased Chandrahas and defendant No.4 is not binding on him and sought for the relief of perpetual injunction against the defendants, restraining from interfering with the peaceful possession and enjoyment of A schedule property. 5. It the case of the plaintiff that Mahantavva is the wife of Chandappa and they had three sons and one daughter by the name Shivanagappa, Mahantappa, Yankanna and Neelamma. Chandrappa died about 30 to 35 years back, leaving behind some properties, wife and children. The sons of Chandrappa orally partitioned the properties long back and some of the properties were sold. After the demise of Chandrappa, his wife Mahantavva was living separately and as per her will, visiting her children's house. She had love and affection with all the sons, daughter and grandchildren. She had gold and silver ornaments and some savings. Out of her self-earned money, she had purchased the land in R.S.No.95/2A, measuring 3 acres 38 guntas from one Sangayya under a registered sale deed dated 22.12.1986. During 1990-1991, - 4 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 in the presence of elders of village, she got divided her movable and immovable properties to her children. In the said partition, the gold and silver ornaments were given to Mahantappa, yankanna and Neelamma equally. Accordingly, she gave land bearing R.S.No.95/2A to the plaintiff. The plaintiff became the absolute owner of the suit schedule property and he is in possession and enjoyment of the suit schedule property. The defendants trying to interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. It is contended that one Chandrahas, i.e., the son of Mahanatappa has fraudulently created documents regarding the title of the suit properties and obtained loan from defendant no. 4 on the suit property. It is contended that the deceased Chandrahas has no right, title or interest over the suit schedule property. Hence, a cause of action arose to file a suit for declaration and permanent injunction. Accordingly, prayed to decree the suit. - 5 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 6. Defendant No.1 filed a written statement for herself and on behalf of defendant Nos.2 and 3, who were minors. Defendants No.1 to 3 denied the averments made in the plaint and contended that the deceased Mahantavva was mostly residing with her elder son Mahantappa, who was well to do and financially well by virtue of his contract work and by his duty. Mahantappa was engaged in contract work. He had purchased the suit land in his mother’s name on 22.12.1986 through a registered sale deed. The suit property was in actual possession of Mahantappa and he was enjoying the ownership of the suit land. It is contended that the plaintiff used to pressurize the mother to effect partition. She yielded to the pressure of the plaintiff and prepared memorandum of partition on 10.08.1992 and the suit land was got allotted in the name of the plaintiff and his name was mutated under M.E.No.1946. This fact was not known to the deceased Mahantavva but when the deceased Mahantappa narrated to his mother, she virtually reprimanded the plaintiff. It is - 6 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 contended that the plaintiff is estopped from questioning M.E.No.2047. It is contended that the suit filed by the plaintiff is not maintainable and the suit is barred by limitation. It is also contended that defendants No.1 to 3 have acquired the suit property by virtue of adverse possession. Hence, prayed to dismiss the suit against the defendants No.1 to 3. 7. Defendant No.4 filed a written statement denying the averments made in the plaint and it is contended that defendant No.4 had obtained a loan on the property and it is binding on the parties. It is also contended that the plaintiff has not issued a legal notice as required under Section 125 of the Karnataka Cooperative Societies Act. Hence, suit against defendant No.4 is not maintainable. Hence, prayed to dismiss the suit against defendant No.4. 8. The trial Court, based on the pleadings of the parties, framed the following issues: - 7 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 1) Whether the Plaintiff proves that, he is absolute owner of suit land? 2) Whether defendants prove that, they are owners of the suit land by adverse possession? 3) Whether suit of the plaintiff is time barred? 4) Whether the plaintiff is entitle for the relief claimed? 5) What order or decree? 9. The plaintiff, to substantiate his case, examined himself as PW-1, examined three witnesses as PW-2 to PW- 4 and marked 14 documents as Exs.P-1 to P-14. In rebuttal, defendant No.1 was examined as DW-1 and marked 11 documents as Exs.D-1 to D-11. 10. The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1, 2 and 4 in the negative, issue No.3 in the affirmative and issue No.5 as per the final order. The suit was dismissed with costs vide judgment dated 31/01/2015. - 8 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 11. The plaintiff, aggrieved by the judgment of dismissal of the suit, preferred an appeal in R.A.No.12/2015 on the file of Prl. District and Sessions Judge, Bagalkote. 12. The first Appellate Court, after hearing the learned counsel for parties, framed the following points for determination: 1. Whether appellant/plaintiff proves that lower court has committed serious error in recording negative findings on Issue No.1 and affirmative findings on issue No.3? 2. Whether appellant/plaintiff proves that lower court was not justified in rejecting I.A.VII and VIII by order dated 3.7.2013? 3. Whether interference of this Court is required? 4. What order? 13. The first Appellate Court, after reassessing the verbal and documentary evidence, allowed the appeal and set aside the judgment and decree dated 31.01.2015 passed in O.S.No.43/2011. The matter was remanded to - 9 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 the trial Court for disposal of the same in accordance with law in the light of observations made by the first Appellate Court. 14. Defendants No.1 to 3, aggrieved by the judgment and decree passed in R.A.No.12/2015 dated 22.08.2019, filed this Miscellaneous Second Appeal. 15. Heard the arguments of the learned counsel for defendants No.1 to 3 and learned counsel for plaintiff. 16. Learned counsel for defendants No.1 to 3 submits that the plaintiff filed applications in I.A.VII seeking amendment to pleading and for alternative relief of partition and separate possession and I.A.VIII to implead necessary parties to the proposed relief. He submits that the said applications were rejected by the trail Court. He further submits that the plaintiff has not raised any ground in the memorandum of appeal as required under Section 105 of the Code of Civil Procedure (for short ‘CPC’). He also submits that the First Appellate Court, allowed the - 10 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 applications without notifying to the parties. He also submits that from the perusal of the impugned judgment, it does not reflect the reasons on which the First Appellate Court has allowed I.A.VII and VIII and the First Appellate Court has committed an error in remanding the matter. Hence, on these grounds, he prays to allow the appeal. 17. Per contra, learned counsel for the plaintiff submits that admittedly, the plaintiff filed a suit for declaration of title and perpetual injunction. He submits that in case if the defendants are not entitled for a relief of declaration and the plaintiff is entitled for a share in the suit schedule property, the Court can mould the relief under Order 7 Rule 7 of the CPC. To buttress his argument, he has placed reliance on the judgment of the Division Bench of this Court in the case of Rangappa vs. Jayamma1 and on the judgment of the Hon’ble Apex Court in the case of J. Ganapatha and others vs. Selvarajalou Chetty Trust 1 ILR 1987 KAR 2889 - 11 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 represented by Trustee and others reported in 2025 SCC Online SC 633. He submits that to avoid the multiplicity of litigation, the Court can mould a relief under Order 7 Rule 7. The First Appellate Court, instead of relegating the plaintiff to file a fresh suit for partition and separate possession, has rightly allowed the applications in I.As.VII and VIII. He submits that the First Appellate Court was justified in remitting the matter to the trial Court. There is no error committed by the First Appellate Court in remitting the matter to the trial Court. Hence, on these grounds, he prays to dismiss the appeal. 18. This Court vide order dated 15.11.2022, admitted the appeal to consider the following substantial question of law: “Whether the order of remand is just and proper?” 19. The plaintiff filed a suit for declaration of title and perpetual injunction claiming that the suit schedule property fell to the share of the plaintiff in a partition effected in the - 12 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 year 1992. By virtue of partition, the plaintiff became the absolute owner of the suit schedule property and it is also contended that based on the partition effected between the plaintiff and his siblings, the mutation was effected in the name of the plaintiff. Plaintiff, to substantiate his case, examined himself as PW-1 and reiterated the plaint averments in the examination-in-chief and produced 14 documents as Exs.-P1 to P-14 and also examined three witnesses as PW-2 to PW-4. They have deposed in the same line of Pw-1. In rebuttal, the defendant No.1 was examined herself as DW-1 and reiterated the written statement averments in the examination-in-chief and marked 11 documents as Exs.D-1 to D-11. During the pendency of the suit, the plaintiff filed applications in I.A.VII for amendment to the plaint and I.A.VIII for impleading his brothers and sister as defendants. The trial Court rejected the said applications on the ground that the applications were filed at a belated stage. The First Appellate Court considering the applications filed by the plaintiff held that - 13 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 the plaintiff is not entitled for a relief of declaration of title and perpetual injunction, there is no bar for plaintiff to file an application to seek an alternative relief of partition and separate possession and also to avoid that the suit is bad for non-joinder of necessary parties, the plaintiff has also filed I.A.VIII to implead brothers and sister as defendants in the said suit. The trial Court has committed an error in rejecting I.A.VII and VIII on the ground that it is filed at a belated stage. The trial Court without considering the proposition laid down by this Court in the case of Rangappa (referred to supra), has committed an error in rejecting the applications. Even if I.A.VII is rejected, still the Court can mould a relief under Order 7 Rule 7 of CPC as held by the Division Bench of this Court in the case of Rangappa (referred to supra). Further, the Hon’ble Apex Court in the case of J. Ganapatha (referred to supra), has held that the principle enables the Court to grant appropriate remedies even if the relief requested in the pleading is not exact or could not be considered by the Court or changed - 14 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 circumstances have rendered the relief obsolete. The Court aims that justice is served while considering the evolving nature of a case. The above road map is pursued by a Court based on the notion of flexibility in relief, equitable jurisdiction, and is tempered by judicial discretion. When moulding the relief, the Court considers the issues and circumstances established during the full-fledged trial, looks at shortening the litigation, and then in its perspective, renders complete justice to the issue at hand. The converse of the above is that the moulded relief should not take the aggrieved party by surprise or cause prejudice. The relief is moulded as an exception and not as a matter of course. Though the trial Court has held that the plaintiff is not entitled for the relief of declaration of title but however recorded a finding that the suit property is his mother’s property and she died intestate and as per Section 15 of the Hindu Succession Act, the properties left by the deceased mother, plaintiff and defendants are entitled to a share as per Section 15 of Hindu Succession Act. The First Appellate - 15 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 Court instead of relegating the plaintiff to file a fresh suit for partition and separate possession, allowed the application in I.A.VII for amendment to the plaint and I.A.VIII to implead the brothers and sister of the plaintiff. The first Appellate Court has placed reliance on the judgment of the Hon’ble Apex Court in the case of Hiya Associates and others vs. Nakshatra Properties Pvt. Ltd.,2 and has rightly allowed the applications i.e., I.A.VII and VIII and remitted the matter to the trial Court. I do not find any error in the impugned judgment and decree passed in R.A.No.12/2015. 20. In view of the above discussion, I answer the substantial question of law in the affirmative. Accordingly, I proceed to pass the following: ORDER (i) The appeal is dismissed. (ii) The judgment dated 22.08.2019 passed in R.A. No.12/2015 by the Principal District and Sessions Judge, Bagalkot is confirmed. 2 2019 (1) KCCR SN 41 (SC) - 16 - HC-KAR NC: 2025:KHC-D:11167 MSA No. 100116 of 2019 (iii) Liberty is reserved to the defendants to file additional written statement. (iv) It is made clear that this Court has not made any adjudication on merits in issue. (v) All the contentions of the parties are kept open including the maintainability of the suit. (vi) Parties are directed to appear before the trial Court on 23.10.2025. (vii) Office is directed to transmit the records to the trial Court forthwith. Sd/- (ASHOK S. KINAGI) JUDGE NAA, CT:VP LIST NO.: 1 SL NO.: 12