HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH MISCELLANEOUS SECOND APPEAL NO.86 OF 2021 (RO)

C/W MISCELLANEOUS SECOND APPEAL NO.85 OF 2021 (RO)

IN MSA NO.86/2021:

BETWEEN:

S.K.MANJUNATHA S/O B. KARIYAPPA AGED ABOUT 83 YEARS R/O NO.170, 4^TH CROSS

2^ND MAIN, WOODS ENCLAVE PHASE-1, VIDYANAGARA CROSS INTERNATIONAL AIRPORT ROAD BENGALURU-562 157.

…APPELLANT (BY SRI. HARISH KUMAR M.S., AND Digitally signed SRI. GANGADHARA D.C., ADVOCATE)

by DEVIKA M AND:

Location: HIGH COURT OF KARNATAKA K.G. SRIKANTAPPA SINCE DECEASED BY LRS.

SMT. SAKAMMA W/O LATE K.G.SRIKANTAPPA AGED ABOUT 82 YEARS R/O KORATIKERE VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT-577 215.

…RESPONDENT (BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR C/R)

HC-KAR THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 16.09.2021 PASSED IN R.A.NO.67/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.05.2017 PASSED IN O.S.NO.251/2006 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANAGERE. DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION REMANDING BACK TO THE TRIAL COURT FOR FRAMING OF ADDITIONAL ISSUE WITH REGARD TO THE ALLEGED WILL DATED 21.11.2005, AND AFTER GIVING SUFFICIENT OPPORTUNITY TO BOTH PARTIES TO ADDUCE ADDITIONAL EVIDENCE.

IN MSA NO.85/2021:

BETWEEN:

S.K.MANJUNATHA S/O B. KARIYAPPA AGED ABOUT 83 YEARS R/O NO.170, 4^TH CROSS

2^ND MAIN, WOODS ENCLAVE PHASE-1, VIDYANAGARA CROSS INTERNATIONAL AIRPORT ROAD BENGALURU-562 157 ...APPELLANT (BY SRI. HARISH KUMAR M.S., AND SRI. GANGADHARA D.C., ADVOCATE)

AND:

K.G. SRIKANTAPPA SINCE DECEASED BY LRS.

SMT. SAKAMMA W/O LATE K.G. SRIKANTAPPA AGED ABOUT 82 YEARS R/O KORATIKERE VILLAGE HC-KAR CHANNAGIRI TALUK DAVANAGERE DISTRICT-577 215 ...RESPONDENT (BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR C/R)

THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 16.09.2021 PASSED IN R.A.NO.68/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.05.2017 PASSED IN O.S.NO.299/2006 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANAGERE. DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION AND REMANDING BACK THE MATTER TO THE TRIAL COURT.

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

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

ORAL JUDGMENT

Heard learned counsel for the appellant and learned counsel for caveator-respondent.

2. These two miscellaneous second appeals are filed challenging judgment and decree passed in R.A.Nos.67/2017 and 68/2017, wherein the First Appellate Court allowed I.A.No.1 filed under Order 6, Rule 17 CPC and I.A.No.2 filed under Order 41, Rule 27 CPC and remanded the matter for fresh consideration, since specific plea is taken in terms of HC-KAR I.A.No.1 that there is a Will dated 21.11.2005. Hence, directed the Trial Court to give an opportunity to both the parties to adduce their additional evidence and then dispose of the matter afresh.

3. Learned counsel appearing for the appellant in his argument would vehemently contend that Trial Court committed an error in remanding the matter and contend that the Will is propounded after more than a decade and amendment allowed by the Trial Court is erroneous and ought not to have allowed the amendment and remanded the matter for fresh consideration. The counsel also vehemently contend that when the Will is produced and if the Court comes to the conclusion that, in order to decide the issue involved between the parties, Will is necessary, then ought to have remanded the matter only for the limited purpose to examine in respect of the Will is concerned and ought not to have set aside the entire judgment of the Trial Court.

4. Per contra, learned counsel appearing for caveator-

respondent would contend t