- 1 - HC-KAR NC: 2025:KHC:37755 MSA No. 31 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 31 OF 2022 BETWEEN: D SUNDARA RAMI REDDY S/O. VENKATA SUBBA REDDY, R/O. NO. 275, 13TH CROSS, HIG, RMV II STAGE, BENGALURU - 560 094 …APPELLANT (BY SRI. PRADEEP KUMAR, ADVOCATE FOR SRI. SHANMUKHAPPA, ADVOCATE) AND: 1. SMT. GIRIJA D/O. LATE. CHIKKAPILLAPPA, AGED 39 YEARS R/O. KANNUR VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU - 560 049. CHIKKA PILLAPA SINCE DECEASED BY HIS LRS, 2. SMT. KANTHAMMA D/O. LATE. CHIKKA PILLAPPA, AGED ABUT 62 YEARS Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:37755 MSA No. 31 of 2022 3. SMT. PAVITHRA D/O. LATE. CHIKKAPILLAPPA, AGED ABOUT 40 YEARS 4. SMT. SUMALATHA D/O. LATE. CHIKKAPILLAPPA, AGED ABOUT 36 YEARS 5. SMT. TANUJA D/O. LATE. CHIKKAPILLAPPA, AGED ABOUT 30 YEARS ALL ARE RESIDENTS OF KANNUR VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU - 560 049. 6. SMT. G R SANDHYA KUMARI W/O. LATE. N SRINIVASAPPA, AGED ABOUT 60 YEARS, R/O. NO. 6, PATEL CHALAVAPPA STREET, M R PALYA, JC NAGAR, BENGALURU - 560 006. …RESPONDENTS (BY SRI. SUNIL K.N, ADVOCATE FOR R1; R2, R5 AND R6 ARE SERVED AND UNREPRESENTED; VIDE ORDER DATED 13.12.2024, NOTICE TO 3 AND R4 IS HELD SUFFICIENT) THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF THE CPC, AGAINST THE JUDGMENT DATED 27.10.2021 PASSED IN RA.NO.42/2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 01.12.2018 PASSED ORDER ON PRELIMINARY ISSUE IN O.S.NO.874/2010 - 3 - HC-KAR NC: 2025:KHC:37755 MSA No. 31 of 2022 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Pradeep Kumar for Sri. Shanmukhappa, learned counsel for the appellant and Sri. Sunil K.M., learned counsel for respondent No.1. Respondents No.2, 5 and 6 are duly served and unrepresented. 2. Second appeal is by the sixth defendant challenging the judgement of the First Appellate Court in R.A.No.42/2019 whereby suit of the plaintiff which was rejected following the judgement of the Hon'ble Apex Court in the case of Prakash versus Phulavarthi reported in AIR 2016 SC 769 is reversed and suit is ordered to be retried on merits in accordance with law. 3. Operative portion of the Order of the First Appellate Court reads as under : - 4 - HC-KAR NC: 2025:KHC:37755 MSA No. 31 of 2022 "The suit of plaintiff is dismissed with costs payable to the defendant No.6. Office to draw Decree accordingly." 4. Facts in brief which are utmost necessary for disposal of the present appeal are as under: A suit for partition came to be filed by the plaintiff against the defendant in respect of following properties (hereinafter referred to as 'suit properties' for short) : SCHEDULE The land bearing Sy.No.23/2 of Kannur Village, Bidarahalli Hobli, Bangalore East Taluk, measuring to an extent of 0-30 guntas and bounded on the East by : Property of Jayamma West by : Property of Byanna North by : Road South by : Property of K. Hemanna 5. Suit was being contested and evidence was being recorded. In the interregnum, the Honb'le Apex Court rendered a decision in the case of Prakash versus - 5 - HC-KAR NC: 2025:KHC:37755 MSA No. 31 of 2022 Phulavarthi reported in AIR 2016 SC 769, whereby the learned Trial Judge raised an additional issue and rejected the plaint in view of the sale affected by the father of the plaintiffs wherein plaintiffs were also consenting witnesses. 6. Dismissal of the suit was questioned before the First Appellate Court R.A. No.42/2019 by the plaintiff. 7. Learned Judge in the First Appellate Court, taking note of the principles of law enunciated by the Hon'ble Apex Court in the case of Vinita Sharma vs. Rakesh Sharma reported in (2020) 9 SCC 1, set-aside the judgement of the Trial Court rejecting the plaint of the plaintiff and remitted the matter to the Trial Court for fresh disposal in accordance with law by the impugned judgment. 8. Validity of the said Order of the First Appellate Court called in question in the second appeal by the sixth defendant. - 6 - HC-KAR NC: 2025:KHC:37755 MSA No. 31 of 2022 9. Sri Pradeep Kumar, learned counsel for the appellant reiterating grounds urged in the appeal memorandum contended that when the father of the plaintiff has sold the property to the sixth defendant and plaintiff being the consenting signature to the said sale deed, a suit by the plaintiffs ignoring the registered sale deed has resulted in miscarriage of justice which has not been considered by the learned Judge in the First Appellate Court in the impugned judgement and thus sought for allowing the appeal. 10. Per contra, learned counsel for the plaintiff supports the judgement of the First Appellate Court. 11. Having heard the arguments of both sides, this Court perused the material on record meticulously. 12. On such perusal of the material on record, the Trial Court admittedly rejected the plaint of the plaintiff following the dictum of the Hon'ble Apex Court in the case - 7 - HC-KAR NC: 2025:KHC:37755 MSA No. 31 of 2022 of Prakash versus Phulavarthi reported in AIR 2016 SC 769. 13. However, when the matter is pending before the First Appellate Court, the judgement of the Honourable Apex Court in the case of Vinita Sharma versus reported in (2020) 9 SCC 1 came to be passed whereby the principles of law enunciated in Prakash versus Phulavarthi got impliedly overruled. 14. Therefore, the First Appellate Court set-aside the rejection of the plaint and remitted the matter to the First Appellate Court to be decided on merits. 15. The ground on which the impugned judgement of the First Appellate Court is opposed by the appellant is that there is a valid registered sale deed in favour of the sixth defendant by the father of the plaintiffs for which the plaintiffs are also the consenting witnesses. - 8 - HC-KAR NC: 2025:KHC:37755 MSA No. 31 of 2022 16. If it is so, it is the defence to be urged in the suit and the Trial Judge is bound to consider such a defence in accordance with law. 17. Reserving the liberty for the appellants to urge all possible defenses including the doctrine of finality, the present appeal needs to be dismissed. 18. Accordingly, following Order: ORDER (i) Appeal is dismissed. (ii) All possible defenses including the defence of doctrine of finality is permitted to be urged by the appellant who is the sixth defendant in the pending suit and learned Trial Judge shall consider the same in accordance with law and dispose of the suit on merits. Sd/- (V SRISHANANDA) JUDGE SNC