Sri. M. P. Anjinappa Vs Sri. M. P. Krishnappa

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.01.2025 PASSED IN R.A.NO.78/2013 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT MALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 4.07.2013 PASSED IN O.S.NO.381/2006 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC (JR.DN.), MALUR.

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THIS APPEAL COMING ON FOR FINAL HEARING 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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Heard the learned counsel for the appellants

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and also the learned counsel for the respondent.

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The main contention of the appellants’ counsel before this Court is that the property Item No.2 which is shown in the suit O.S.No.381/2006 is not available for partition and counsel would vehemently contend that in the written statement in paragraph No.15 specific contention is taken that while selling the property by the plaintiff in the year 1984 wrongly mentioned the survey number as 221/1 instead of 226/1 and when such specific pleading is given and also an application is filed for

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NC: 2025:KHC:27964 RSA No. 560 of 2025

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HC-KAR

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appointment of Commissioner to identify whether the

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same boundaries or not and the same was also rejected.

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The counsel would vehemently contend that

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when the applications are filed under Order 41 Rule 27 of

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CPC i.e. I.A.No.2, I.A.No.3, I.A.No.5 and I.A.No.8 and number of documents are produced and also Appellate Court while considering those applications, allowed all the I.As’ on the very same day of pronouncing the judgment on appeal and also counsel brought to notice of this Court once the applications are allowed, ought to have recorded the evidence on those documents and also ought to have remanded the matter to the Trial Court to consider those documents. The counsel also would contend that while disposing of the appeal, only discussed with regard to the unregistered documents and except discussion of about those documents in paragraph No.21 not touched upon

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the documents which have been produced along with I.A.No.3, I.A.No.5 and I.A.No.8 and number of documents are produced and the very approach of the Appellate Court

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NC: 2025:KHC:27964 RSA No. 560 of 2025

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HC-KAR

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is erroneous and hence matter requires re-consideration and an opportunity has to be given to the parties to lead evidence in view of allowing of those I.As’ under Order 41 Rule 27 of CPC and not recorded the evidence in the Appellate Court itself or remanded the matter to the Trial Court.

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The counsel appearing for the respondent would contend that there is a clear admission on the part of D.W.1 that though he took the specific contention that there was an error in mentioning the survey number in the sale deed as 221/1 instead of mentioning the same as 226/1, but categorically admitted that both the properties are distinct properties. The counsel also brought to notice of this Court D.W.1 categorically admitted that plaintiff is having half share in the Sy.No.226/1 and apart from that counsel also brought to notice of this Court that in respect of Ex.P.18 and Ex.P.20, categorical admission was given that those properties are ancestral properties and not committed an error in granting the share and also

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HC-KAR

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Appellate Court confirming the order passed by the Trial Court and no need of remanding the matter and the very second appeal itself is not maintainable.

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Having heard the appellants’ counsel and also

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the counsel appearing for the respondent and having perused the judgment of Trial Court granted half share in respect of Item No.2 and same is confirmed by the Appellate Court. It is important to note that when the Appellate Court disposed of I.As’ filed under Order 41 Rule 27 of CPC on the very day of pronouncing the judgment and allowed those applications. Having perused the order impugned in paragraph No.21 discussed only in respect of unregistered documents which have been produced along with I.A.No.2 and fails to consider the other documents which have been produced along with I.A.No.3, I.A.No.5 and I.A.No.8 and number of documents are allowed and when those applications are allowed either Appellate Court ought to have recorded the evidence by itself or remanded the matter to the Trial Court to consider those documents

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HC-KAR

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and dispose of the same on merits. Instead of that, no doubt there was a clear admission on the part of D.W.1 in the cross-examination that both the properties are distinct property. But, the very contention of the appellant’s counsel that an error was made in mentioning the survey number as 221/1 instead of 226/1 and counsel would contend that the said property belongs to the uncle of the parties and there was a mortgage in the year 1949 and also contend that when the boundaries are same, ought to have considered the same. On perusal of the document when the sale deed was executed by the plaintiff in the year 1984 in favour of his brother which is marked as Ex.P.12 wherein also a reference was made that Pillaya i.e., father of the parties had purchased the property in the year 1941 wherein also Sy.No.221/1 is mentioned and also in the subsequent sale deed when the same was executed in the year 1984, very same survey number is mentioned. But, the very claim of the appellant before the Trial Court in paragraph No.16 of the written statement,

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HC-KAR

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there was a mistake in mentioning the survey number.

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But, the fact is that both the properties are in existence is not in dispute, Sy.No.221/1 is also in existence and Sy.No.226/1 is also in existence. But, there are revenue documents also and hence once the IAs’ are allowed, ought to have given an opportunity to both the parties to lead evidence with regard to the IAs’ filed under Order 41 Rule 27 of CPC.

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It is also important to note that it is settled law

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also while considering the appeal which is pending before the Appellate Court, ought to have considered IAs’ along with main appeal. But, here in this case separate order has been passed by the Appellate Court and the IAs’ which have been allowed i.e., I.A.No.2, I.A.No.3, I.A.No.5 and I.A.No.8 and documents are not considered and only an observation is made in paragraph No.21 with regard to the documents which have been filed along with I.A.No.2 and no discussion at all in respect of other documents and once the IAs’ filed under Order 41 Rule 27 of CPC are

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allowed, an opportunity ought to have been given by the Appellate Court itself or would have been remanded the same but not done the same and hence matter requires remand and instead of remanding the matter to the Trial Court it is appropriate to direct the Appellate Court itself to consider the matter to record the evidence in respect of allowing of IAs’ filed under Order 41 Rule 27 of CPC that is I.A.No.2, IA No.3, I.A.No.5 and I.A.No.8 and give an opportunity to both the counsels to clarify with regard to whether there was a mistake in mentioning the survey number as contended by the appellant and also take note of earlier document of 1941 wherein survey number 221/1 is mentioned and also subsequently while selling the property by the plaintiff in favour of the Anjinappa also mentioned the same in the year 1984 and also to examine whether Item No.2 property belongs to the family of the plaintiff and defendant and take a decision whether parties are entitled for a share in the suit schedule property and hence suit was filed in the year 2006 and now 19 has

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HC-KAR

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been elapsed after filing of the suit that too suit for a partition is concerned. Hence, it is appropriate to direct the Appellate Court to decide the issue involved between the parties within a time bond period. Hence, I pass the following:

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ORDER

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i) The Second Appeal is allowed .

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ii) The impugned judgment of the Appellate Court passed in R.A.No.78/2013 is set-aside. Matter is remitted back to the Appellate Court to record the evidence in view of allowing of IAs’ filed under Order 41 Rule 27 of CPC and directed to give an opportunity to both the parties and take the decision on merits in keeping the admissions available on record as well as the evidence going to be recorded in future and decide the same on merits within a period of 6 months from 28.08.2025.

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iii) The parties are directed to appear before the Appellate Court without expecting any notice from the Appellate Court.

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NC: 2025:KHC:27964 RSA No. 560 of 2025

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HC-KAR

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iv) The Registry is directed to send both the Court records to the Appellate Court forthwith to enable the Appellate Court to take up the matter without fail on 28.08.2025.

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v) The respective counsels and parties are directed to assist the Appellate Court in disposal of the matter within a period of 6 months.

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Sd/(H.P.SANDESH) JUDGE

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RHS

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List No.: 1 Sl No.: 42

Sri. M. P. Anjinappa v. Sri. M. P. Krishnappa

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Sri. M. P. Anjinappa v. Sri. M. P. Krishnappa

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