B.K. Chandrashekaraswamy, Vs Lingamma

(NOTE: SINCE DEFENDANT NO.1 MYLARAPPA DIED ON 14/05/2021 DURING THE PENDENCY OF SUIT. HIS LRS ONLY COME ON RECORD HENCE HE IS NOT MADE AS PARTY IN THE PRESENT APPEAL)

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…RESPONDENTS

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(BY SMT ROOPA N, ADVOCATE)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.08.2025 PASSED IN RA NO.98/2022 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU, RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 29.07.2022 PASSED IN OS.NO.490/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE NELAMANGALA THE MATTER IS REMITTED BACK TO THE TRIAL COURT FOR FRESH CONSIDERATION IN LIGHT OF THE OBSERVATION MADE IN PARA NO.18 OF THIS JUDGMENT.

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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NC: 2026:KHC:1753 MSA No. 229 of 2025

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HC-KAR

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ORAL JUDGMENT

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Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

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This Miscellaneous Second Appeal is filed against the order remanding the matter to the Trial Court on the premise that the Trial Court has framed three additional issues when the case is posted for judgment.

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The First Appellate Court has found fault with the procedure adopted by the Trial Court in framing three additional issues when the case is posted for judgment and not giving an opportunity to the parties to lead evidence on the said additional issues. Those three additional issues are as under:

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(a) Whether the defendant No.2 proves that court fee paid is insufficient?

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(b) Whether defendant No.2 proves that suit is barred by law of limitation?

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(c) Whether defendant No.2 further proves that suit is bad for partial partition?

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NC: 2026:KHC:1753 MSA No. 229 of 2025

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HC-KAR

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The first additional issue is relating to payment of

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Court fee. That issue has been answered in favour of the plaintiffs.

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The second additional issue is relating to limitation. Though the Court has held that the suit is not in time and that is one of the reasons assigned by the Trial Court to dismiss the suit, what is required to be noticed is the Trial Court has held that the suit property is the selfacquired property of the plaintiffs. Hence, the question of limitation does not arise. In case, the amendment sought in the plaint is allowed then the issue relating to limitation may or may not arise depending upon the defence taken to the amended plaint. Nevertheless, under Section 3 of the Limitation Act, 1963, the question of limitation has to be considered by the Court even if such defence is not specifically arised in the written statement. However, the Court is of the view that under the facts and circumstances of the case there was no need to remand the matter as

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NC: 2026:KHC:1753 MSA No. 229 of 2025

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HC-KAR

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aforesaid, as the Court had not come to the conclusion that the property is the joint family property.

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The third additional issue is relating to the maintainability of suit for partial partition. Again, since the Court has taken a view that the suit property is the selfacquired property, the question of partial partition does not arise. The question would arise only if Court come to the conclusion on merits that the suit property is the joint family property.

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Under these circumstances, only the technical plea that the parties were not heard before pronouncing judgment on the additional issues, First Appellate Court could not have remitted the matter to the Trial Court.

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Learned counsel for the respondents/plaintiffs

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would urge that the plaintiffs have filed an application for production of additional documents before the First Appellate Court and have also sought amendment of the plaint and for this reason also the matter is admitted to the Trial Court.

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NC: 2026:KHC:1753 MSA No. 229 of 2025

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HC-KAR

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The Court has considered the contentions raised

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at the Bar and perused the perused the judgment.

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The following point would arise for consideration:

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Whether the First Appellate Court is justified in remanding the matter to the Trial Court?

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It is noticed from the judgment that while remitting the matter to the Trial Court on the premise that after framing additional issues, opportunity is not given to the parties. The First Appellate Court has not considered the application for amendment of the plaint and production of additional documents on merits. Since it has already taken a view to remit the matter to the trial Court on additional issues, the Court has simply allowed those two applications. The Court has not recorded any finding on those applications.

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Under these circumstances, the Court proceed to pass the following:

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NC: 2026:KHC:1753 MSA No. 229 of 2025

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HC-KAR

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ORDER

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(i) The Appeal is allowed in part.

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(ii) The impugned judgment and decree dated 11.08.2025 on the file of II Additional District Judge, Bangalore Rural District, Bangalore in RA No.98/2022 are unsustainable and accordingly are set aside.

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(iii) The matter is remitted to the First Appellate Court for fresh consideration.

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(iv) The application for amendment of plaint and application for production of additional documents shall be considered in accordance with law.

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(v) Needless to say that application of production of additional documents has to be considered while hearing the appeal on merits.

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(vi) It is made clear that this Court has not expressed anything on the question as to whether the suit property is the joint family property or the self acquired property or any other contentions on the merits.

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