H. Kanumappa Vs Krishna

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.07.2024 PASSED IN R.A.NO.42/2022 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 13.09.2022 PASSED IN O.S.NO.336/2017 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE, AND JMFC, CHITRADURGA.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for the caveator/respondent Nos.1 and 2.

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At the first instance, the Trial Court dismissed the

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suit when the suit is filed for the relief of partition and separate possession in O.S.No.336/2017, wherein the plaintiffs claimed that they are entitled for the relief of partition and separate possession of 2/3^rd share as the property is the ancestral

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NC: 2025:KHC:51058 RSA No. 1466 of 2024

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HC-KAR

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property. The same is challenged before the First Appellate Court in R.A.No.42/2022 and the First Appellate Court when an application is filed under Order 41 Rule 27 of CPC, heard the matter and even the grounds urged in the first appeal also set out in paragraph No.9 and framed the points for consideration with regard to whether the appellants prove that the suit schedule property is ancestral joint family property held by them along with the defendants and whether the appellants prove that they may be permitted to submit additional documents under Order 41 Rule 27 of CPC and whether interference is required. The First Appellate Court having considered both oral and documentary evidence placed on record, answered point Nos.1 to 3 in the affirmative and set aside the judgment and decree of the Trial Court. Though framed point No.2 with regard to Order 41 Rule 27 of CPC is concerned, the learned counsel for the appellants brought to the notice of this Court that nothing is discussed with regard to scope of Order 41 Rule 27 of CPC for production of additional documents. The learned counsel also submits that with regard to point No.1 whether the appellants establishes that the suit schedule property is an ancestral property also not discussed

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NC: 2025:KHC:51058 RSA No. 1466 of 2024

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HC-KAR

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anything except stating that the father had got the property by way of partition. The First Appellate Court in paragraph No.20 taken note of that the recitals of Ex.P.4 clearly state that the said property was ancestral properties of H. Narasappa. Therefore, the properties are acquired by defendant No.1 in the partition dated 06.05.1998 although are separate property qua other relations, but it is a coparcenary property insofar as his sons are concerned. Hence, the learned counsel would submit that the matter requires re-consideration and the First Appellate Court not exercised the power under Order 41 Rule 1 of CPC and ought to have decided the same as original suit and the first appeal is a statutory appeal.

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Per contra, the learned counsel for the caveator/respondent Nos.1 and 2 would submit that they filed an application under Order 41 Rule 27 of CPC and not disputes the fact that no discussion was made with regard to either allowing of application filed under Order 41 Rule 27 of CPC or rejection is concerned except answering the same in the affirmative. The learned counsel would vehemently contend that the First Appellate Court comes to the conclusion that it is

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NC: 2025:KHC:51058 RSA No. 1466 of 2024

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HC-KAR

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an ancestral property and the same is considered in paragraph No.20 of the judgment.

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Having heard the learned counsel for the appellants and the learned counsel for the caveator/respondent Nos.1 and 2, though the matter is listed for admission and when the point for consideration is framed by the First Appellate Court with regard to Order 41 Rule 27 of CPC as point No.2, there is a force in the contention of the learned counsel for the appellants that nothing is discussed in the judgment of the First Appellate Court with regard to the scope of Order 41 Rule 27 of CPC whether the appellants have made out the case to allow the documents or not and ought to have considered the same whether that application is required to be allowed for consideration of germane issues involved between the parties and no such finding. A discussion is made with regard to point No.1 is concerned. While considering the first appeal and the same being a statutory appeal under Order 41 Rule 1 read with Section 96 of CPC, the First Appellate Court has to consider both question of fact and question of law and proceed as original proceedings. Though the same is termed as appeal

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HC-KAR

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and dispute between the parties i.e., question of fact and also the question of law whether it is an ancestral property or selfacquired property, ought to have been discussed by considering the evidence, which has been led before the Trial Court and nothing is discussed in the judgment and scope of Order 41 Rule 31 of CPC is also not found in the judgment passed by the First Appellate Court. When such being the case, the matter requires to be remanded with a time bound direction to the First Appellate Court to consider the same afresh in view of the observations made by this Court.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The second appeal is allowed.

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(ii) The impugned judgment and decree of the First Appellate Court dated 01.07.2024 passed in R.A.No.42/2022, is set aside.

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(iii) The matter is remanded back to the First Appellate Court to consider the matter afresh along with the application filed under Order 41 Rule 27 of CPC and also the merits of the case

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NC: 2025:KHC:51058 RSA No. 1466 of 2024

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HC-KAR

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exercising the powers under Order 41 Rule 31 of CPC in view of the observations made by this Court and the same shall be disposed of within three months from 05.01.2026.

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(iv) The parties are directed to appear before the First Appellate Court on 05.01.2026, without expecting any notice from the First Appellate Court.

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(v) The respective parties and the counsel are directed to assist the First Appellate Court in disposal of the matter within the time bound period as directed.

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(vi) The Registry is directed to send the records of the Trial Court and the First Appellate Court forthwith to the First Appellate Court to enable the First Appellate Court to take up the matter without fail on 05.01.2026.

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Sd/(H.P.SANDESH) JUDGE

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MD

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List No.: 1 Sl No.: 57

H. Kanumappa v. Krishna

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H. Kanumappa v. Krishna

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