- 1 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL No.74 OF 2025 (RO) BETWEEN: 1. SRI RAJENDRA PATIL S/O BASAPPAGOWDA ALIAS B.V. PATIL, AGED ABOUT 66 YEARS, 2. SRI. GURUNATHA GOWDA, S/O BASAPPAGOWDA ALIAS B.V. PATIL, AGED ABOUT 64 YEARS BOTH ARE RESIDENTS OF BENNUR VILLAGE, ANAVATTI HOBLI, SORAB TALUK, SKEREHALLI POST SHIVAMOGGA DISTRICT-577429 …APPELLANTS (BY SRI MAHESH R UPPIN, ADVOCATE) AND: 1. SMT CHANNAMMA W/O PANCHAKSHARAIAH, AGED ABOUT 71 YEARS, WIDOW, 2. SRI. BANGARASWAMI S/O PANCHAKSHARAIAH AGED ABOUT 46 YEARS 3. SRI. ERAIAH S/O PANCHAKSHARAIAH, AGED ABOUT 44 YEARS. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 RESPONDENTS 1 TO 3 ARE R/O KOTEKOPPA VILLAGE, ANAVATTI HOBLI, SORABA TALUK, SHIVAMOGGA DISTRICT-577431. 4. SMT SOUBHAGYA W/O MALLAIAH, AGED ABOUT 51 YEARS, 5. SMT. SAVITHA W/O RAJAIAH, AGED ABOUT 42 YEARS, RESPONDENTS 4 TO 5 ARE R/O SOORANAGI VILLAGE, POST: TELAGUNDA, JADE HOBLI, SORABA TALUK, SHIVAMOGGA DISTRICT-577419 6. SMT SAVITHRI, W/O MRUTHYUNJAYA HIREMATH AGED ABOUT 48 YEARS, R/O ISALOORU, SIRSI TALUK, KARWAR DISTRICT -581 358 7. SMT RAJESHWARI, W/O INDHUDHARAIAH, AGED ABOUT 40 YEARS, 8. SRI CHANNAVEERAIAH, S/O MOOKAPPA, AGED ABOUT 56 YEARS, RESPONDENTS 7 TO 8 ARE R/O KELAVARAKOPPA, HANAGAL TALUK, HAVERI DISTRICT -581120 9. SMT PARVATAMMA W/O SHADAKSHARAIAH - 3 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 AGED ABOUT 81 YEARS. 10. SMT PRAMEELA, W/O GURUMURTAIAH AGED ABOUT 59 YEARS R/O KANAKERI, SORABA-TOWN, -577429 SHIVAMOGGA DISTRICT. 11. SRI. BASAVARAJAIAH S.H, S/O. SHADAKSHARAIAH, AGED ABOUT 57 YEARS 12. SMT SHAILAJA, W/O CHANNAVEERAIAH, AGED ABOUT 55 YEARS. R/O MOODY VILLAGE, SORABA TALUK, SHIVAMOGGA DISTRICT -577413 13. SRI. NAGARAJAIAH S.H, S/O. SHADAKSHARAIAH, AGED ABOUT 53 YEARS, PRESENTLY R/O CHAMARAJPETE, SAGAR TOWN, SHIVAMOGGA DISTRICT -577401 14. SRI. SIDDALINGAIAH S.H, S/O. SHADAKSHARAIAH, AGED ABOUT 44 YEARS, RESPONDENTS NO.9, 11 TO 14 ARE R/O KOTEKOPPA VILLAGE, KEREHALLI POST, SORABA TALUK, SHIVAMOGGA DISTRICT-577 413 15. SRI SHIVANANDAIAH, S/O ERAIAH, AGED ABOUT 76 YEARS, - 4 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 16. SRI.KANTAIAH, S/O. ERAIAH, AGED ABOUT 71 YEARS, RESPONDENTS 15 TO 16 ARE R/O KOTEKOPPA VILLAGE, KEREHALLI, SORABA TALUK, SHIVAMOGGA DISTRICT-577413 17. SRI. MRUTHYUNJAYA GOWDA S/O BASAPPAGOWDA ALIAS B.V.PATIL AGED ABOUT 59 YEARS. R/O BENHUR VILLAGE, ANAVATTI HOBLI, SORAB TALUK. SHIVAMOGGA DISTRICT-577413 …RESPONDENTS (BY SRI MAHESH B J, ADVOCATE FOR R1, R2, R4 TO R16; R3-ERAIAH SERVED; VIDE ORDER DATED 08.09.2025 NOTICE TO R17 HELD SUFFICIENT) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 08.01.2025 PASSED IN RA NO.10009/2019 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.01.2019 PASSED IN OS NO.5/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, SORABA, AND THE MATTER IS REMANDED BACK TO THE SENIOR CIVIL JUDGE AND JMFC, SORABA WITH A DIRECTION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 5 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 ORAL JUDGMENT Heard Sri Mahesh R.Uppin, learned counsel for the appellants and Sri Mahesh B.J., learned counsel for the respondents. 2. Plaintiff Nos.1 and 2 are the appellants in this appeal challenging the Judgment dated 08.01.2025 passed in R.A No.10009/2019 on the file of the V Additional District and Sessions Judge, Shivamogga, sitting at Sagar, whereby the decreeing of the suit in O.S No.5/2012, dated 16.01.2018 on the file of the Senior Civil Judge and JMFC, Soraba, is set aside and matter is remitted to the Trial Court. 3. The operative portion of the Order passed by the First Appellate Court in R.A.No.10009/2019 reads as under: “The I.A.No.I filed by the appellant No.4 under Order 6 Rule 17 of CPC is hereby rejected. The I.A.No.II filed by the appellant No.4 under Order 41 Rule 27 of CPC is hereby rejected. The I.A.No.III filed by the appellant No.4 under Order 8 Rule 1-A(3) of CPC is hereby rejected. - 6 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 The Regular Appeal filed by the appellant u/Section 96 r/w Order 41 Rule 1 of CPC is hereby allowed. The judgment and decree passed in O.S.5/2012 dated 16.01.2019 on the file of Senior Civil Judge and JMFC, Soraba, is hereby set-aside. The matter is remanded back to the Senior Civil Judge and JMFC, Soraba, with a direction to give finding on the additional issue by giving an opportunity to both the parties to lead oral and documentary evidence if any and to give a proper findings on all the issues and to dispose off the suit as per law within 5 months from the date of receipt of order.” 4. Facts which are utmost necessary for disposal of the appeal are as under: 4.1 Suit for declaration and possession came to be filed by the plaintiffs against the defendants. In the original written statement filed by the defendants, there was no plea regarding the suit being barred by limitation. 4.2 However written statement got amended and question of limitation i.e., the suit being not in time is taken as an additional plea. - 7 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 5. However there was no additional issue framed by the Trial Court, nor any parties resorted to Order XIV Rule 5 of the Code of Civil Procedure to frame the additional issue with regard to the limitation. 6. Learned Trial Judge decreed the suit of the plaintiffs, which was questioned by the defendants before the First Appellate Court in R.A No.10009/2019. 7. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and noted that additional issue with regard to the suit being barred by limitation was necessary in the attendant facts and circumstance of the case. Therefore, set-aside the judgment and decree of the Trial Court and remitted the matter to the Trial Court for fresh disposal in accordance with law on the additional issue regarding limitation. 8. However, in the operative portion of the Judgment, the learned Judge in the First Appellate Court has stated that the proper findings are to be recorded by the Trial Court on all the - 8 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 issues and directed to dispose of the suit as per law within period of five months. 9. When the discussion is only with regard to the limitation and non framing of the necessary issue with regard to the suit being barred by limitation, remitting the matter to the Trial Court and directing the Trial Court to record fresh findings on all issues has thus, resulted in miscarriage of justice. 10. In other words, it is an open remand made by the learned Judge in the First Appellate Court, which is impermissible. Same is called in question by the plaintiff Nos.1 and 2 in this appeal. 11. Sri Mahesh B.J. learned counsel for the respondents/defendants fairly agree that the discussion by the First Appellate Court was only with regard to the question of limitation and remitting the matter only for the purpose of raising the additional issue with regard to limitation and recording a finding on the question of limitation was the thing that was required. - 9 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 12. Learned Judge in the First Appellate Court directing the Trial Court to record proper findings on all issues was unnecessary, having regard to the discussion made in the body of the judgment. 13. Hence this Court is of the considered opinion that if the appeal is allowed by further modifying the Order of the First Appellate Court only with regard to the question of raising the additional issue with regard to the limitation and recording a finding on the limitation after allowing the parties to place evidence on record and disposing the suit would meet the ends of justice. 14. Hence, the following: ORDER (i) Appeal is allowed. (ii) Order of the First Appellate Court is further modified as under: (a) Remitting the suit to the Trial Court is maintained, but direction to record proper findings on all issues is hereby set aside. - 10 - HC-KAR NC: 2025:KHC:35248 MSA No. 74 of 2025 (b) Trial Court shall frame an additional issue, if not already framed, with regard to the limitation and thereafter allow the parties to place oral and documentary evidence on record only on the question of limitation and rehear the matter on the question of the additional issue and pass appropriate judgment in accordance with law. (c) Parties are at liberty to place oral and documentary evidence on record only with regard to the question of suit being barred by limitation. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 1