IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 12^TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE MISCL SECOND APPEAL NO. 200161 OF 2019 (LA)

BETWEEN:

1. DANESHWARI W/O BASAVARAJ SARASAMBI, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O: NANDU ONI, WARD NO.4, CHADCHAN, TQ:CHADCHAN, DIST: VIJAYAPURA – 586 205.

2. CHIDANAND S/O BASAVARAJ SARASAMBI, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: NANDU ONI, WARD NO.4, CHADCHAN, TQ:CHADCHAN, DIST: VIJAYAPURA – 586 205.

3. DAYANAND S/O BASAVARAJ SARASAMBI AGE: 32 YEARS, OCC: AGRICULTURE, R/O NANDU ONI, WARD NO. 4, CHADCHAN, TQ:CHADCHAN, DIST: VIJAYAPUR - 586 205.

4. NAGAMMA W/O SHRISHAIL NARONI, AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O GOTHE COMPLEX, CHADCHAN, TQ:CHADCHAN DIST: VIJAYAPUR – 586 205.

5. SRI. RAJASHEKHAR S/O DUNDAPPA SARASAMBI, AGE: 34 YEARS, OCC: AGRICULTURE, R/O CHADCHAN, TQ:CHADCHAN, DIST: VIJAYAPUR – 586 205.

…APPELLANTS (BY SRI. D.P.AMBEKAR, ADVOCATE)

AND:

1. SRI. TUKARAM S/O SHANKAR NATIKAR, AGE: 45 YEARS, OCC: AGRICULTURE, 2. REVAPPA S/o SHANKAR NATIKAR, AGE: 42 YEARS, OCC: AGRICULTURE, 3. SHIVAPPA S/O SHANKAR NATIKAR, AGE: 39 YEARS, OCC: AGRICULTURE, 4. SHANTABAI D/O SHANKAR NATIKAR, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, 5. SUMITRA D/O SHANKAR NATIKAR, AGE: 27 YEARS, OCC:AGRICULTURE, ALL R/O CHADACHAN, TQ:CHADCHAN, DIST: VIJAYAPUR – 586 205.

…RESPONDENTS (BY SRI. G.G.CHAGASHETTI, ADVOCATE)

THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF THE CPC PRAYING TO SET-ASIDE THE JUDGMENT/ORDER OF REMAND DATED 20.04.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, INDI IN RA NO.01/2016 SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.12.20215 PASSED BY THE ADDL. CIVIL JUDGE & JMFC, INDI IN O.S.NO.9/2011 AND FURTHER DISMISS THE SAID SUIT AND THE SAID REGULAR APPEAL WITH COSTS THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

Heard the learned counsel appearing for the appellants as well as learned counsel appearing for respondents.

2. This miscellaneous second appeal is directed against the decree in R.A.No.1/2016 on the file of Senior Civil Judge, Indi. In terms of the impugned decree, the First Appellate Court has remanded the matter to the Trial Court for recording the finding on all issues. The suit in O.S.No.9/2011 on the file of Additional Civil Judge, Indi was filed for the relief of declaration of title and consequential relief of injunction along with the relief of partition. The plaintiffs have also sought the relief that the sale deed dated 13.08.1971 is invalid.

3. In terms of judgment in decree dated

07.12.2015, the suit is dismissed as not maintainable. The Trial Court has passed the order based on the preliminary issue which reads as under :

“Whether the defendants prove that the suit is not maintainable, in view of the order of the Hon’ble High Court of Karnataka in W.P.No.13997/1989 ?”

4. Learned counsel appearing for the defendants/

appellants would submit that the plaintiffs’ father had sold the property to original defendant No.1 - Dundappa under registered sale deed dated 13.04.1971. Thereafter, the plaintiffs’ father applied for re-grant of the land as the land was attached to the Village Office. The father of defendant No.1 who had purchased the property filed the writ petition challenging the order of Tahsildar who has cancelled the sale-deed in favour of father of defendant No.1 and the said W.P.No.13996/1989 was allowed and in this Court has declared that the sale-deed is in favour defendant No.1, is valid. The vendor did not question the sale-deed.

5. Later the vendor’s children filed the suit for declaration and partition referred to above. In the said suit, the aforementioned order is passed on the ground that the suit is not maintainable in view of the order passed in the writ petition. In an appeal by the plaintiffs, the judgment of the Trial