- 1 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 200069 OF 2025 (DEC/POS) BETWEEN: 1. JAMELA W/O ABDULRAZAK MAKANDAR, AGE: 62 YEARS, OCC: BUSINESS R/O: ROSHANI BATTERY, 100 FEET ROAD, SANGLI – 416 406. 2. MOHAMMAD FAROOQ S/O ABDULRAZAK MAKANDAR, AGE: 39 YEARS, OCC: BUSINESS R/O: ROSHANI BATTERY, 100 FEET ROAD, SANGLI – 416 406. 3. FATIMA D/O ABDULRAZAK MAKANDAR, AGE: 37 YEARS, OCC: HOUSEHOLD, R/O: ROSHANI BATTERY, 100 FEET ROAD, SANGLI – 416 406. 4. ANJUM D/O ABDULRAZAK MAKANDAR, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: ROSHANI BATTERY, 100 FEET ROAD, SANGLI – 416 406. Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 5. RUKAYYA D/O ABDULRAZAK MAKANDAR, AGE: 34 YEARS, OCC: HOUSEHOLD, R/O: ROSHANI BATTERY, 100 FEET ROAD, SANGLI – 416 406. 6. IMRAN S/O ABDULRAZAK MAKANDAR AGE: 31 YEARS, OCC: HOUSEHOLD, R/O: ROSHANI BATTERY, 100 FEET ROAD, SANGLI – 416 406. 7. MEHARUNBEE @ ALLAMA W/O FARKRUDDIN MAKANDAR AGE: 48 YEARS, OCC: HOUSEHOLD WORK R/O: LOKAPUR, DIST: BAGALKOT – 587 122. 8. RAJESAB @ RAJU S/O FAKRUDDIN MAKANDAR AGE: 28 YEARS, OCC: MECHANIC R/O: LOKAPUR, DIST: BAGALKOT – 587 122. 9. RIYAZ S/O FAKRUDDIN MAKANDAR AGE: 28 YEARS, OCC: MECHANIC R/O: LOKAPUR, DIST: BAGALKOT – 587 122. 10. SALMA W/O MOHSIN BAGNIKAR @ CARRYBAGWALE AGE: 23 YEARS, OCC: HOUSEHOLD WORK R/O: BADAM CHOWK, SANGLI – 416 406. …APPELLANTS (BY SRI. SACHIN M.MAHAJAN, ADVOCATE) - 3 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 AND: 1. BEGUMBEE W/O LATE BAPUSAB BARGAR @ HORAGINAMANI AGE: 76 YEARS, OCC: HOUSEHOLD WORK R/O: GASTI PLOT, ATHANI DIST: BELAGAVI – 591 304. 2. MUMTAZ W/O IBRAHIM HYALAD AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O: RAM NAGAR, TISRI GALLI 100 FEET ROAD CORNER KOLHAPUR ROAD, SANGLI - 416 406. 3. MOHAMMAD ALI S/O LATE BAPUSAB BARGAR @ HORAGINAMANI AGE: 41 YEARS, OCC: BUSINESS R/O: GASTI PLOT, ATHANI DIST: BELAGAVI – 591 304. 4. MAHABOOBBI W/O HAJI MALANG TELASANGA AGE: 38 YEARS, OCC: HOUSEHOLD WORK R/O: HONWAD VILLAGE, TQ: TIKOTA DIST: VIJAYAPURA – 58613. 5. AMIR MUKHTAR S/O LATE BAPUSAB BARGAR @ HORAGINAMANI AGE: 36 YEARS, OCC: BUSINESS R/O: GASTI PLOT, ATHANI DIST: BELAGAVI – 591 304. 6. BABULAL S/O LATE BAPUSAB BARGAR @ HORAGINAMANI AGE: 34 YEARS, - 4 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 OCC: BUSINESS, R/O: GASTI PLOT, ATHANI, DIST: BELAGAVI – 591 304. 7. CHANDBI W/O MEHABOOB MADDIN, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O: SHANTNIKETAN COLONY MAHALINGPUR (RURAL), TQ: MUDHOL, DIST: BAGALKOT – 587 312. …RESPONDENTS (BY SRI G.G.CHAGASHETTI, C/R1 TO R6) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC, PRAYING TO SET ASIDE THE FINDINGS ON ISSUE NO.1 AND THE OBSERVATIONS ON ISSUE NO.3 IN THE JUDGMENT AND DECREE DATED 09.04.2019 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE, VIJAYAPURA AND CONSEQUENTLY MODIFY THE JUDGMENT AND DECREE BY ANSWERING THE ISSUE NO.1 IN THE NEGATIVE AND ETC. THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the appellants as well as learned counsel appearing for the respondents. - 5 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 2. This regular second appeal arising from the judgment and decree in RA No.44/2019 on the IV-Addl. Senior Civil Judge, Vijayapur. 3. Initially, the suit was filed in OS No.43/2015 for relief of declaration and injunction. The plaintiff one Mr.Saheblal sought a declaration that he is the owner of the property and transfer of property in the name of defendant No.1 through a wardi and unregistered document is invalid. He also sought for consequential relief of injunction. 4. The defendant No.1 contested the suit and claimed that Saheblal transferred the property through a document called as settlement deed and thereafter, he moved an application to the revenue authorities to enter the name of defendant No.1 in property records, pursuant to which mutation is certified in the name of defendant No.1. Thus, defendant claimed absolute - 6 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 ownership over the property and prayed for dismissal of the suit. 5. Trial Court dismissed the suit in entirety. The trial Court while answering the issue No.1 held that plaintiff is the absolute owner of the property. However, the trial Court has also held answered issue No.2 whether defendant No.1 got the document executed from the plaintiff by practicing fraud, against the plaintiff. The Court also said that the suit is time barred and consequently suit is dismissed. 6. Aggrieved by the decree dismissing the suit, plaintiff filed appeal and defendant No.1 aggrieved by the finding on issue No.2 filed cross objection. 7. The appeal filed by the plaintiff is allowed. The judgment and decree passed by the trial Court are set aside and the suit is decreed in toto. Hence, defendant No.1 is before this Court assailing the afore - 7 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 mentioned judgment and decree passed by the first appellate Court reversing the judgment and decree of the trial Court. 8. Learned counsel appearing for the defendant No.1/appellant would contend that his cross objection challenging the judgment and decree passed by the trial Court is pending consideration before the first appellate Court. The first appellate was required to hear the cross objection as well as along with the appeal simultaneously and thereafter should have passed the appropriate order. He would also submit that though the suit is dismissed in entirety, defendant No.1 is aggrieved by the finding that the document in his favour is invalid, filed cross objection as this is one of the options available to him in addition to, he orally objecting to the finding of the trial Court in an appeal filed by the appellant. Thus, he would contend that the first appellate Court was under obligation to hear the - 8 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 cross objection on merit and it could not have decided the appeal alone. 9. Learned counsel would also submit that both appeal and cross objections were heard together and written submissions were filed by the cross objector before the first appellate Court. Despite that the first appellate Court ignores the cross objection and doesn’t decide the cross objection. And the Court has decided the appeal without reference to the cross objections, as such, he would contend that the impugned judgment and decree have to be set aside and the matter has to be remitted to the first appellate Court to hear the appeal as well as cross objections simultaneously. 10. Learned counsel appearing for the respondents vehemently opposed the contentions raised by the appellant and would contend that the appellant has not brought to the notice of the Court that the cross objection filed is pending for consideration. Having not - 9 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 argued the matter in the cross appeal and having not brought it to the notice of the first appellate Court that the cross appeal is also still pending, appellant is precluded from raising a contention that the cross objection is not heard. 11. It is his further submission that only after disposal of the appeal before the fist appellate Court, the cross objector filed an application contending that his cross objection is still pending. This Court has considered the contentions raised the bar and peruse the records. 12. The following substantial question of law arises for consideration. 1) Whether the first appellate Court is justified in deciding the appeal without reference to the cross objection which is filed by the respondent-cross objector? - 10 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 13. There is no dispute that two issues are held against the defendant, though the suit is dismissed in his entirety. The plaintiff has filed an appeal against the decree challenging the dismissal of his suit. The cross objector had an option to support the decree, dismissing the suit and at the same time he was also enabled in law to oppose the findings on the issues which have gone against him. In addition to that he had an option of filing a cross objection and same was done. Under these circumstances, the first appellate Court was required to hear the appeal as well as cross objections simultaneously. 14. It is also submitted that the appellant has filed written submission both in appeal as well as cross objection. Despite this the first appellate Court proceeded to decide only the appeal and did not pass any orders in the cross objection. Now the cross objection is still pending consideration. - 11 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 15. In case the first appellate Court is only directed to consider the cross objection which is pending some of the findings which are recorded in the judgment and decree which are under appeal before this Court, may come in the way of first appellate Court deciding the cross objection objectively. 16. It is also noticed that the original plaintiff died during the pendency of the suit. Thereafter, the contesting respondent has come on record as a legatee of the original plaintiff. The application to come on record based on the alleged Will of original plaintiff is allowed only for a limited purpose. Thus, the finding relating to declaration of title, if any granted will not confer obsolete right in favour of the legatee unless the Will is established the manner known to law. 17. Under these circumstances, it is open to either of the parties to file a suit based on the their claim relating to the Will alleged to have been executed - 12 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 by deceased Saheblal. If such suit is filed, same shall be decided in accordance with law notwithstanding the pendency of the appeal and cross objection before the first appellate Court. 18. Under these circumstances, impugned judgment and decree passed by the first appellate Court has to be set aside and the matter is remitted to the first appellate court to consider the appeal as well as cross objection afresh. Hence, the following: ORDER Appeal is allowed in part. Impugned judgment and decree dated 25.11.2024 in R.A.No.44/2019 on the file of IV-Addl. Senior Civil Judge, Vijayapur are set aside. The first appellate Court shall hear the appeal as well as cross objection together. - 13 - NC: 2025:KHC-K:1592 RSA No. 200069 of 2025 It is made clear that nothing is expressed on the merits of the matter. The parties shall appear before the first appellate Court on the date fixed for hearing of the cross objection as well as main appeal without any further notice on 15.04.2025. Send the records to the first appellate Court. Sd/- (ANANT RAMANATH HEGDE) JUDGE SMP List No.: 1 Sl No.: 42