In the High Court of Karnataka Dharwad Bench
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1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 28 th DAY OF JUNE 2019 BEFORE THE HON’BLE MR.JUSTICE P.G.M. PATIL MSA NO.567/2012 BETWEEN: TIPPANNA MAHALINGAPPA @ HUDDAR, AGE: 37 YEARS, OCC: AGRICULTURE, R/O HOSAHALLI, TQ.RAMDURG, DIST.BELGAUM. ... APPELLANT (By SRI. R. K. KULKARNI, ADV. ) AND 1. SMT. YALLAVVA W/O HANAMAPPA HOLAIR, AGE: 58 YEARS, OCC: HOUSE HOLD WORK & AGRICULTURE, R/O CHIPPALKATTI, TQ. RAMDURG, DIST.BELGAUM. 2. MARUTI S/O HANAMAPPA HOLAIR, AGE: 59 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 3. SHRIKANT S/O HANAMAPPA HOLAIR, AGE: 28 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE, R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 4. SURESH S/O HANAMAPPA HOLAIR, AGE: 23 YEARS, OCC:HOUSEHOLD WORK & 2 AGRICULTURE, R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 5. MISS LAXMAVVA D/O HANAMAPPA HOLAIR, AGE: 43 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE, R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 6. SMT. SHOBHA W/O LAXMAPPA HARIJAN, AGE: 35 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE, R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM 7. SMT. MALA W/O YAMANAPPA MADAR, AGE: 25 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 7(A) KUMAR LAXMAN S/O YAMANAPPA MADAR, AGE: 09 YEARS, OCC: STUDENT, R/O: RADARATTI TQ: GOKAK, DIST: BELGAUM. NOW AT CHIPPALAKATTI, TQ. RAMADURG. SINCE REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN SHRI. YAMANAPPA DURGAPPA MADAR @ HARIJAN 7(B) KUMAR PRAVEEN S/O YAMANAPPA MADAR, AGE: 07 YEARS, OCC: STUDENT, R/O: RADARATTI TQ: GOKAK, DIST: BELGAUM. SINCE REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN SHRI. YAMANAPPA DURGAPPA MADAR @ HARIJAN 8. SMT. KASTURAWWA W/O RAMAPPA HOLAIR, AGE: 53 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE, R/O CHIPPALKATTI, TQ.RAMDURG, DIST: BELGAUM. 9. SMT. SUDHA W/O SADANAND MADAR, AGE: 33 YEARS, OCC:HOUSEHOLD WORK & 3 AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 10. SMT. YALLAWWA S/O SUBASH @ MADAR, AGE: 28 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 11. SHRI JAGADISH S/O RAMAPPA HOLAIR, AGE: 22 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 12. KUMAR MAHANTESH S/O RAMAPPA HOLAIR, AGE: 16 YEARS, SINCE MINOR REPRESENTED BY APPLICANT NO.1 BEING A NATURAL MOTHER 13. SMT. CHANDRAVVA W/O LAXMAPPA HOLAIR @ HARIJAN, AGE: 46 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 14. SHRI DILEEP S/O LAXMAPPA HOLAIR @ HARIJAN, AGE: 30 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 15. SHRI VITHAL S/O LAXMAPPA HOLAIR @ HARIJAN, AGE: 26 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM 16. KUMAR RANGAPPA S/O LAXMAPPA HOLAIR @ HARIJAN, AGE: 24 YEARS, OCC:HOUSEHOLD WORK & AGRICULTURE,. R/O CHIPPALKATTI, TQ.RAMDURG, BELGAUM. 4 ... RESPONDENTS (By SRI. B.S.KUKANAGOUDAR, ADV. FOR R-1-R6, R8-R11 & R13-R16; R-12, R-7(A) & R-7(B) ARE MINORS R/BY R-1; R7(A,B) ARE LRS OF R-7(C)) THIS MSA FILED U/O.43 RULE 1(u) OF CPC., AGAINST THE JUDGEMENT AND DECREE DTD 20.04.2012 PASSED IN R.A.NO.5/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, RAMDURG, ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD 18.12.2010 PASSED IN O.S. NO.81/2001 ON THE FILE OF THE CIVIL JUDGE & JMFC, RAMDURG, DISMISSING THE SUIT FILED FOR DECLARATION. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERY THE FOLLOWING:- JUDGMENT The defendant being aggrieved by the judgment and decree dated 20.04.2012 passed in R.A.No.5/2011 by the Senior Civil Judge, Ramdurg setting aside the judgment and decree dated 18.12.2010 passed in O.S.No.81/2001 by the Civil Judge, Ramdurg and remanding the matter to the trial Court, has filed this Miscellaneous Second appeal. 5 2. The parties are referred to their ranks before the trial Court. 3. The original plaintiff Hanamappa filed O.S.No.81/2001 against the defendant seeking a decree for cancellation of sale deed dated 18.11.1998 on the ground that the same is sham, frivolous, forged, bogus, illegal, null and void. 4. It is the case of the plaintiff that the suit properties are ancestral joint Hindu family properties of the plaintiffs and they are in joint possession and enjoyment of the same and no partition took place between them so far. Plaintiffs never faced financial difficulties and at no point of time, they brought the suit properties for sale and the original plaintiffs have not executed the sale deed in fovour of defendant in respect of suit property. 5. The plaintiff has however alleged that he came to know about the alleged sale deed on 18.11.1998, only 6 after the receipt of the notice from the Office of Deputy Tahasildar, Chandargi. Thereafter, he filed the said suit for cancellation of sale deed. 6. In pursuance of the summons, the defendant appeared in the suit and filed written statement. He has denied the material averments made in the plaint. The defendant further pleaded that plaintiffs No.1 and 2 and their brother laxmappa brought the suit property and have executed sale deed dated 18.11.1998. Defendant has purchased the suit property from them for valuable consideration of Rs.31,000/- and obtained the sale deed. He has further submitted that he developed suit properties by cultivating them. He has denied that the plaintiffs are in joint possession of the suit schedule properties and prayed for dismissal of the suit. 7. On the basis of the pleadings of the parties, trail Court framed issues. 7 8. The plaintiffs in support of their case got examined 3 witnesses as PW1 to PW3 and got marked 7 documents at Ex.P1 to P7. The respondent got examined 3 witness as DW1 to DW3 and got marked 9 documents at Ex.D1 to D9. 9. After hearing both the parties, trail Court dismissed the suit with costs. 10. The plaintiff being aggrieved by the impugned judgment and decree filed R.A.No.5/2011 on the file of Senior Civil Judge, Ramdurga. 11. The appellate Court secured the lower Court records. Heard the learned counsel appearing for the parties and passed the impugned judgment on 20.04.2012, the judgment and decree passed by the trial Court was set aside and the matter was remanded to the trial Court for fresh disposal in accordance with law. Trail Court shall dispose off the suit and if 8 necessary to give an opportunity to both the parties to lead further evidence in the matter. 12. The defendant being aggrieved by the impugned the judgment has filed this second appeal on the grounds that the First Appellate Court has utterly failed to see that if the matter is remitted back for fresh disposal in accordance with law to frame fresh issues, which were not framed by the First Appellate Court. Such issues should have been framed and then only the matter should have been remitted. 13. It is further contended that the First Appellate Court has lost sight of the provisions of Order XLI Rule 23 CPC. The First Appellate Court has mechanically passed the impugned judgment remitting the matter to the trial Court. 14. Heard the learned counsel for the appellant and respondents. 9 15. A short question which arise for consideration before this Court is as to “whether the impugned judgment and decree remanding the matter to the trial Court for fresh disposal after framing proper issues is sustainable in law? 16. The learned counsel for the appellant submitted that the observations of the First Appellate Court in the judgment that the counsel appearing for the parties have deliberately not enlightened the Court to frame necessary issues for effective adjudication of the case and such other observations are unwarranted and that the First Appellate Court ought to have framed the proper issues before remanding the matter to the trial Court. Learned counsel further submitted that absolutely there are no grounds for remanding the matter to the trial Court and it is the duty of the First Appellate Court to appreciate the material on record and decide the appeal on merits. 10 17. Per contra, learned counsel for the respondent supports the impugned judgment. 18. It is seen from the record that the First Appellate Court has not framed proper points for consideration in the appeal as required under Order XLI Rule 31 of CPC and further observations made by the First Appellate Court that the duty cast upon the parties and their counsels to assist the Court to frame the proper issues and that in the instant case the parties and their counsels deliberately have not enlightened the Court to frame necessary issues for effective adjudication of the case etc. are unwarranted. The First Appellate Court has not at all appreciated as to which proper and necessary issues were not framed by the trial Court and which issues ought to have been framed for proper adjuration of the case. It is not proper on the part of the First Appellate Court to simply 11 observe that no proper issues are framed and therefore, it is a case for remand. 19. On the other hand provisions of Order 41 Rule 23 and 23A CPC provides the circumstances under which a matter can be remanded to the trial Court. Order XLI Rule 23 and 23A of CPC reads as follows:- “Rule 23 Remand of case by Appellate Court Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate court may, if it fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred.