- 1 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 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.118 OF 2023(RO) BETWEEN: 1. SRI HARSHAVARDHANA S/O S V YOGARAJU, AGED ABOUT 27 YEARS, 2. SRI S V YOGARAJU S/O S V VENKATESHAPPA, AGED ABOUT 60 YEARS, 3. SRI S V RANGANATHA S/O S V VENKATESHAPPA, AGED ABOUT 66 YEARS, EX-VICE PRESIDENT, PURASABHE, HOSADURGA ALL ARE R/O BANASHANKARI STREET, KOTE BADAVANE, HOSADURGA TOWN, CHITRADURGA DISTRICT-577 527 …APPELLANTS (BY SRI B K MANJUNATH, ADVOCATE) AND: 1. S. T. CHANDRASHEKAR S/O THIMMAIAH, AGED ABOUT 73 YEARS, RETIRED EMPLOYEE, R/O VIDYANAGAR, HOSADURGA TOWN, CHITRADURGA DISTRICT -577527 Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 2. SRI H A GIRISH S/O ANJINAPPA, AGED ABOUT 54 YEARS, PRIVATE EMPLOYEE 3. SRI H A SATHISH S/O ANJINAPPA, AGED ABOUT 52 YEARS, PRIVATE EMPLOYEE, APPELLANT NO.2 AND 3 ARE R/O HOUSE NO.358, KK LAYOUT, 2ND CROSS, 1ST FLOOR, DEEPANJALI NAGAR, BANGALORE -28 4. SMT H A KAVITHA W/O HEMANTH KUMAR, MAJOR, HOUSE HOLD WORK, C/O B V SIDDAPPA, 3RD CROSS, 3RD MAIN, MANDARA NILAYA, GORAGUNTE PALYA, BANGALORE -560022 …RESPONDENTS (BY SRI RAJASHEKHARA SEERI, ADVOCATE FOR R1; VIDE ORDER DATED 10.03.2025, NOTICE TO R2 AND R3 AMOUNTS TO DEEMED SERVICE; VIDE ORDER DATED 28.08.2025, R4 CALLED OUT AND ABSENT) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 1.09.2023 PASSED IN R.A.NO.24/2021 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., HOSADURGA., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 5.04.2021 PASSED IN OS NO.125/2014 ON THE FILE OF PRINCIPAL CIVIL JUDGE, HOSADURGA AND THE MATTER IS REMANDED BACK TO THE TRIAL COURT TO DECIDE AFRESH AFTER GIVING OPPORTUNITY TO THE PLAINTIFF TO LEAD EVIDENCE AND TO PRODUCE DOCUMENTS. - 3 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri B.K.Manjunath, learned counsel for the appellants and Sri Rajashekhara Seeri, learned counsel for the contesting respondent No.1. 2. Defendants are the appellants challenging the Order passed in R.A.No.24/2021 dated 01.09.2023 on the file of the Senior Civil Judge and JMFC, Hosadurga, whereby, the judgment dated 05.04.2021 passed in O.S.No.125/2014 on the file of the Prl. Civil Judge, Hosadurga, dismissing the suit was set-aside and matter was remitted to the Trial Court for fresh disposal in accordance with law. 3. Facts of the case which are utmost necessary for disposal of the present appeal are as under: A suit for declaration and recovery of possession came to be filed by the contesting respondent No.1-S.T.Chandrashekar - 4 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 and others, in respect of the property mentioned below, hereinafter referred to as ‘suit property.’ “Country tiled roofed house situated at Banashankari Street, Kote Extension, Hosadurga Town bearing Asst. No.2284/2250/1851/A and its measures East-West 65 feet and North-South 17 feet and bounded as follows: East: Road; West: House and Vacant site of Lakshmanappa, North: Remaining portion belongs to plaintiffs South: Oni.” 4. In the plaint, it is contended that father of plaintiff No.1 by name Thimmaiah made family arrangement and executed a registered relinquishment deed in favour of father of defendant Nos.2 and 3 in the year 1942. The father of defendant Nos.2 and 3 was a minor at that point of time. Therefore, his paternal aunt by name Hanumakka acted as guardian to the father of defendant Nos.2 and 3 at the time of execution of the relinquishment deed. 5. In the year 1949, said Hanumakka sold the properties mentioned in the relinquishment deed in favour of one Baguru - 5 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 Hanumanthappa for her family necessities. After lapse of ten years of the said sale, i.e., in the year 1959, mother of plaintiff No.1 viz., Varadakkara Hanumakka purchased the properties sold to Baguru Hanumanthappa under registered sale deed. 6. Thus, mother of the plaintiff No.1 became the owner in possession of the suit property. During her life time, mother of plaintiff No.1 gave consent to the father of defendant Nos.2 and 3 to reside in the suit property. 7. When defendant No.2 was elected as Member of Town Municipal Council, Hosadurga, and selected as Vice President, he created some documents with respect to suit properties and got the khatha of the suit property mutated in the name of his father-S.V.Venkateshappa. Based on the said municipality records, defendant Nos.2 and 3 filed a suit against the mother of the plaintiff No.1 viz., Varadakkara Hanumakka for the relief of permanent injunction. Said suit came to be decreed. 8. Thereafter, plaintiffs filed a suit against S.V.Venkateshappa-father of defendant Nos.2 and 3 in O.S.No.20/2004 seeking the relief of declaration and - 6 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 permanent injunction with respect to same property. The said suit came to be dismissed and judgment of the Trial Court got concluded in the appeal filed by mother of the plaintiff No.1 and thereafter, plaintiffs have filed the present suit. 9. Defendants opposed the suit on the ground of res judicata among all other counts. 10. Learned Trial Judge after raising necessary issues and recording the evidence of the parties, dismissed the suit of the plaintiffs. 11. Being aggrieved by the same, plaintiffs filed R.A.No.24/2021 on the file of the Senior Civil Judge and JMFC, Hosadurga. 12. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and allowed the additional evidence to be placed on record and remitted the matter to the Trial Court for fresh disposal in accordance with law. - 7 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 13. Operative portion of the judgment of the First Appellate Court reads as under: “The appeal filed by the appellants/plaintiffs u/O XLI Rule 1 of CPC is hereby allowed. Consequently, the order passed by the Prl. Civil Judge and JMFC, Hosadurga, in O.S.No.125/2014 dated 05.04.2021 is hereby set-aside subject to payment of cost of Rs.5,000/- payable to defendants by plaintiffs. I.A.No.2 an application u/O 41 Rule 23 of CPC filed by appellants/ plaintiffs is hereby allowed. I.A.No.3 an application u/O 41 Rule 27 of CPC filed by appellants/ plaintiffs is hereby allowed. Matter is remanded back to the trial court to decide afresh after giving opportunity to the plaintiff to lead evidence and to produce documents. Further both parties are hereby directed to appear before the trial court without taking any notice on 25.09.2023. Further the appellants/plaintiffs is hereby directed to pay cost before trial court to the defendants. Draw decree accordingly.” 14. Being aggrieved by the same, defendants have filed the present appeal on the following grounds: - 8 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023  The Trial Court while answering issue No.1 in O.S. No.20/2004 has categorically held in para 32 of its judgment that Varadakkara Hanumakka W/o. Honnenahalli Chowdappa was the owners of the suit schedule property and none of the parties in O.S.No.20/2004 has right over the suit schedule property.  The Trial Court categorically held that the judgment and decree passed in O.S.No.20/2004 filed by Hanumakka W/o. late Thimmaiah the mother of the first plaintiff against S.V. Venkateshappa has reached finality since, the said judgment and decree passed in O.S.No.20/2004 was not challenged by Hanumakka W/o. late Thimmaiah and on this ground also the Trial Court dismissed the suit filed by the plaintiffs. However, the First Appellate Court without passed considering the judgment and decree passed in O.S.No.20/2004 has remanded the matter for fresh disposal which is manifestly illegal and arbitrary. When the title to the suit schedule property has already been decided in earlier proceedings between the first plaintiffs mother and the appellants in O.S.No.20/2004 the question of remanding the matter to the Trial Court does not arise at all.  The Trial Court dismissed the suit filed by the plaintiffs also on the ground that the judgment and decree passed in O.S.No.74/2003 filed by Venkateshappa the father of the defendants 2 and 3 against Hanumakka W/o late Thimmaiah the mother of the first plaintiff granting permanent injunction restraining Hanumakka - 9 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 W/o. late Thimmaiah from interfering with the suit schedule properties and held that the plaintiffs have failed to prove the title to the suit schedule properties.  The First Appellate Court without adverting to the material evidence remanded the matter for fresh trial which is contrary to order 41 rule 23. It is respectfully submitted that order 41 rule 23 does not contemplate for remanding the matter to fill up lacuna in the suit. The application in R.A.No.24/2021 filed by the plaintiffs for production of additional documents under order 41 rule 27 has not even remotely stated as to why these documents could not be produced before the Trial Court and also as to how these documents are necessary to prove the title to the suit schedule property. The production of the judgment and decree passed in O.S.No.20/2004 has additional evidence as already been produced by the plaintiffs before the Trial Court as per Ex.P8 and P9 and once again the plaintiffs have sought for production of this judgment and decree which is manifestly unsustainable in law.  It is respectfully submitted that based on the judgment and decree in O.S.No.20/2004 produced by the plaintiffs themselves the Trial Court has dismissed the suit. Hence, the application for production of additional documents filed by the respondent was not at all maintainable and the First Appellate Court should have dismissed both the applications filed under order 41 rule 23 and under 41 rule 27. In the impugned judgment the First Appellate Court has not at all given - 10 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 any finding that if the additional evidence is not allowed miscarriage of justice would be caused to the appellants in R.A.No.24/2021.  It is submitted that the collusive suit in O.S.No.148/2008 was filed by the legal representatives of Hanumakka W/o. Honenahalli Chowdappa against S.T.Chandrashekar S/o.Thimmaiah who is one of the plaintiffs in O.S.No.20/2004 in respect of the suit schedule property for declaration and injunction. The said suit was compromised between the plaintiffs in O.S.No.148/2008 and the defendants their in. Under the said compromise the plaintiffs in O.S.No.148/2008 had conceded that the defendants in the said suit are the owners of the suit schedule property. The Trial Court after referring to the compromise decree in O.S.No.148/2008 held that the compromise entered into between the plaintiffs and defendants in O.S.No.148/2008 is surrounded by suspicious circumstances, since the legal representatives of Hanumakka W/o. Honenahalli Chowdappa came into picture only after judgment in O.S.No.20/2004 and held that the compromise entered into in O.S.No. 148/2008 was only intended to over come the judgment and decree passed in O.S.No.20/2004 and eventually dismissed O.S.No.125/2014 filed by the plaintiffs. However, the First Appellate Court without adverting to this relevant and material facts has straight away allowed the appeal filed by the plaintiffs and remanded the matter to the Trial Court. Hence, the impugned - 11 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 judgment and decree passed by the First Appellate court in remanding the matter is liable to be set-aside. Looked at any angle the impugned judgment and decree passed by the 1st appellate court suffers from serious legal as well as factual infirmities and therefore the same is liable to be set aside.” 15. Sri B.K.manjunath, learned counsel for the appellants/ defendants reiterating the grounds urged in the appeal memorandum, contended that when the mother of the plaintiff No.1 had already filed a suit and suffered a decree which concluded in appeal as well, plaintiffs could not have maintained a fresh suit in respect of same property as it amounts to res judicata. Therefore, approach of the First Appellate Court in remitting the matter to the Trial Court has resulted in grave miscarriage of justice and sought for allowing the appeal. 16. Per contra, Sri Rajashekhara Seeri, learned counsel for the respondents/ plaintiffs supports the impugned judgment. 17. Having heard the learned counsel for the parties, this Court perused the material on record, meticulously. - 12 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 18. On such perusal of the material on record, it is crystal clear that the mother of the plaintiff No.1 has already suffered a decree which concluded upto the First Appellate Court. 19. However, independent rights of the plaintiffs could not have been adjudicated in the said suit filed by mother alone. This aspect of the matter is taken into consideration by the First Appellate Court while remitting the matter to the Trial Court for fresh disposal in accordance with law and also allowing the additional evidence to be placed on record. 20. In fact, order of remand would help the present appellants inasmuch as, if any finding is recorded on the additional evidence, the defendants will have a right to challenge the same before First Appellate Court. 21. Therefore, Order of remand has not caused any grave miscarriage of justice or injustice to the defendants who are the appellants before this Court. 22. If an observation is made that all possible points including the point of res judicata is left open to be urged by the defendants in the fresh trial, ends of justice would be met. - 13 - HC-KAR NC: 2025:KHC:35249 MSA No. 118 of 2023 23. Accordingly, the following: ORDER (i) Appeal is dismissed. (ii) Parties are at liberty to canvass all relevant and useful contentions before the Trial Court afresh, in accordance with law. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 26