AND

DECREE

DATED

28.04.2016 PASSED IN RA NO.25/2013 ON THE FILE OF THE

III ADDL. DISTRICT AND SESSIONS JUDGE, RAMANAGARA,

DISPOSED THE APPEAL AND SETTING ASIDE THE JUDGMENT

AND DECREE DATED 01.03.2013 PASSED IN OS N.21/2012 ON

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THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC.,

CHANNAPATTANA, RAMANAGAR DISTRICT, REMANDING THE

MATTER TO THE TRIAL COURT TO FRAME ADDL. ISSUE AND

FOR FRESH DISPOSAL AS PROVIDED UNDER LAW.

MSA 85/2016

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AGED ABOUT 57 YEARS

R/AT NO.2221/1, OUT HOUSE

(BY SRI. K V MOHAN KUMAR.,ADVOCATE FOR R1:,

SRI.B ROOPESHA ADVOCATE FOR R2)

JUDGMENT

AND

DECREE

DATED

28.04.2016 PASSED IN RA NO.34/2013 ON THE FILE OF THE

III ADDL. DISTRICT AND SESSIONS JUDGE, RAMANAGARA,

DISPOSED THE APPEAL AND SETTING ASIDE THE JUDGMENT

AND DECREE DATED 01.03.2013 PASSED IN OS N.21/2012 ON

THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC.,

CHANNAPATTANA, RAMANAGAR DISTRICT, REMANDING THE

MATTER TO THE TRIAL COURT TO FRAME ADDL. ISSUE AND

FOR FRESH DISPOSAL AS PROVIDED UNDER LAW

THESE APPEALS, COMING ON FOR HEARING, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

These appeals under Order 43 Rule 1(u) of CPC are

filed by the appellants challenging the common judgment

and decree dated 28.4.2016 passed by the III Addl.

District and Sessions Judge in R.A.No.25/2013 and

R.A.No.34/2013, whereby the First Appellate Court has

disposed of the appeals, set aside the judgment and

decree dated 1.3.2013 passed by the Senior Civil Judge

and JMFC, Channapatna in O.S.No.21/2012 and remanded

the matters to the Trial Court for fresh disposal.

The

respondent

No.1-Sri.Puttaswamy

in

MSA

No.84/2016 had filed the suit i.e., O.S.No.21/2012 before

the Trial Court for general partition. After hearing the

parties, the Trial Court has partly decreed the suit by

judgment and decree dated 1.3.2013. Being aggrieved by

the

same,

respondent

No.1,

Puttaswamy

in

MSA

No.84/2016 filed R.A.No.25/2013 and respondent No.1,

Smt.Parvathi in MSA No.85/2016 filed R.A.No.34/2013

before the First Appellate Court. Both the regular appeals

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were clubbed together and a common judgment and

decree dated 28.4.20216 was passed by the First

Appellate Court, whereby the First Appellate Court has

disposed of the appeals and set aside the judgment and

decree dated 1.3.2013 passed by the Senior Civil Judge

and JMFC, Channapatna in O.S.No.21/2012 and remanded

the matters to the Trial Court for fresh disposal. Being

aggrieved by the judgment and decree passed by the First

Appellate Court, the present appeals are filed by the

appellants.

The learned counsel for the appellants has

contended that the impugned order passed by the First

Appellate Court remanding the matters to the Trial Court,

is without jurisdiction. He further contended that the First

Appellate Court can remand the matter only as per the

provisions of Order 41 Rules 23 and 23A of CPC. If the

Trial Court has decided the matter only on the preliminary

issue, then the First Appellate Court can remand the

matter to the Trial Court for fresh disposal. He contended

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that since the Trial Court has decided the matter on

merits, the First Appellate Court contrary to the provisions

of Order 41 Rule 23 of CPC has remanded the matter to

the Trial Court. Hence, he sought for allowing the appeals.

Mr.K.V.Mohan

Kumar,

learned

counsel

for

respondent No.1 in MSA 85/2016 has contended that the

First Appellate Court has found that the matters require to

be decided by framing additional issue and evidence has to

be recorded and Trial Court has failed to frame the said

issue and therefore, it has remanded the matter to the

Trial Court. He further contended that the First Appellate

Court can itself frame issues and record additional

evidence and decide the case on merits.

Heard the learned counsel appearing for the parties.

Perused the impugned order.

6.

It is not in dispute that plaintiff, Mr.Puttaswamy

had filed the suit for general partition on the ground that

he has purchased the ‘B’ schedule prop