Karnataka High Court
Sri. M. P. Anjinappa vs Sri. M. P. Krishnappa on 23 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 560 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.560 OF 2025 (PAR)
BETWEEN:
1. SRI. M.P. ANJINAPPA
S/O. LATE POOJARI PILLAPPA
AGED ABOUT 83 YEARS
2. SMT. LALITHAMMA
W/O. AMARANATH
D/O. M. P. ANJINAPPA
AGED ABOUT 57 YEARS
BOTH ARE RESIDING AT
TALUK OFFICE ROAD
MALUR TOWN
MALUR-563 130.
...APPELLANTS
Digitally signed
by DEVIKA M (BY SRI. SUDHINDRA S.A., ADVOCATE)
Location: HIGH AND:
COURT OF
KARNATAKA
1. SRI. M.P. KRISHNAPPA
S/O. LATE POOJARI PILLAPPA
AGED ABOUT 72 YEARS
R/AT DOOR NO.763
TALUK OFFICE ROAD
MALUR TOWN
MALUR-563130.
...RESPONDENT
(BY SRI. GANGI REDDY B.V., ADVOCATE)
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RSA No. 560 of 2025
HC-KAR
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.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for the appellants
and also the learned counsel for the respondent.
2. 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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appointment of Commissioner to identify whether the
same boundaries or not and the same was also rejected.
3. The counsel would vehemently contend that
when the applications are filed under Order 41 Rule 27 of
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
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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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.
4. 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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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.
5. Having heard the appellants' counsel and also
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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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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there was a mistake in mentioning the survey number.
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.
6. It is also important to note that it is settled law
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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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:
ORDER
i) The Second Appeal is allowed.
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.
iii) The parties are directed to appear before the
Appellate Court without expecting any notice
from the Appellate Court.
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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.
v) The respective counsels and parties are
directed to assist the Appellate Court in
disposal of the matter within a period of 6
months.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
