Karnataka High Court
M R Ramanuja vs Zaheerabathulla on 6 August, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:30634
MSA No. 87 of 2021
HC-KAR
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO.87 OF 2021 (RO)
BETWEEN:
M.R. RAMANUJA
S/O M.J. GOVINDARAJA IYENGAR
AGED 67 YEARS
R/O III CROSS, RAVINDRANAGAR
SHIVAMOGGA CITY - 577 201.
...APPELLANT
(BY SRI. P.N. HARISH, ADVOCATE)
AND:
1. ZAHEERABATHULLA
W/O LT USMAN SHARIEFF
AGED 79 YEARS
Digitally 2. ANWAR SHARIEFF
signed by S/O LATE USMAN SHARIEFF
MALATESH AGED 54 YEARS
KC RESPONDENTS 1 AND 2 ARE
Location: R/O MADARIPALYA, URUGADURU POST,
HIGH SHIVAMOGGA - 577 201.
COURT OF
KARNATAKA
3. H. SATISHA
S/O LATE H.N. ONKARAPPA
AGED 49 YEARS
R/O H.NO. 820,
PARK EXTENSION,
SHIVAMOGGA CITY - 577 201.
4. SHAHAJI BI
W/O LATE KHASEEM SHARIEFF
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NC: 2025:KHC:30634
MSA No. 87 of 2021
HC-KAR
AGED 83 YEARS
R/O MADARIPALYA
URUGADURU POST
SHIVAMOGGA - 577 201.
PRESENTLY RESIDENT OF
GANGANAKOTE VILLAGE
HONNALI TALUK - 577 217,
DAVANAGERE DISTRICT.
...RESPONDENTS
(BY SRI. M.V. HIREMATH, ADVOCATE FOR R1 AND R2;
R3 - H. SATHISHA - SERVED, VIDE ORDER DATED
22.11.2022, NOTICE TO R4 IS DISPENSED WITH)
THIS MSA IS FILED UNDER ORDER XLIII RULE 1(u) OF
CPC.,AGAINST THE JUDGMENT AND DECREE DATED
29.09.2021 PASSED IN RA.NO.54/2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE SHIVAMOGGA,
ALLOWING THE APPEAL AND SETTING ASIDE THE THE
JUDGMENT AND DECREE DATED 14.06.2018 PASSED IN
OS.NO.48/2013 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE SHIVAMOGGA, DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION, DIRECTING THE
TRIAL COURT TO PROCEED WITH THE OS.NO.48/2013.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri. P.N. Harish, learned counsel for the appellant and Sri. M.V. Hiremath, learned counsel for the respondents.
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2. The present appeal is filed by the 2nd defendant challenging the order of remand passed by the First Appellate Court in R.A. No.54/2018 whereby the learned Judge in the First Appellate Court set-aside the judgement passed in O.S. No.48/2013 and remitted the matter to the Trial Court to hear the arguments of the parties afresh on all issues, record finding on all issues and pass appropriate order.
3. Operative portion of the judgment of First Appellate Court reads as under:
"The Regular Appeal preferred by the appellants U/o 41 Rule 1 R/w 151 of Code of Civil Procedure 1908 is hereby allowed with costs.
Consequently, the impugned order dated:
14.06.2018 passed by the learned II Additional Senior Civil Judge and CJM Shivamogga on issue No. 7 by treating the same as preliminary issue is hereby set aside and the suit in OS No. 48/2013 stands restored.
The trial court is directed to proceed with the OS No. 48/2013 from the stage of hearing the suit and record the evidence of the parties on all the issues and to -4- NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR dispose off the case on merits at the earliest. Issuance of Court Notice is hereby dispensed. Both the parties are directed to appear before trial court on 21.10.2021 without waiting for any further notice and co-operate with trial court to dispose off the case on merit at the earliest.
Send back the TCR with a copy of this order to the Trial Court."
4. Being aggrieved by the same, the second defendant is before this Court on the following grounds:
The impugned judgment of the first appellate court is highly erroneous, illegal and opposed to law of facts, probabilities of the case.
The first appellate court committed a grave error in remanding the matter to the trial court for fresh disposal. It is respectfully submitted that the first appellate court ignored the fact that upon an order passed by the trial court dated 05.09.2017 treating issue no.7 as preliminary Issue, the parties have examined themselves and having accepted the fact that the case is to be decided first on the preliminary issue, adduced evidence and produced number of documents. After adducing evidence and accepting order on preliminary issue, the plaintiffs are estopped from now claiming that the trial court ought to have recorded evidence on all the issues. The order -5- NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR treating the issue as preliminary issue having reached finality, the first appellate court committed an error in interfering with the judgment of the trial court.
The first appellate court erred in not looking into certain important admissions made by the plaintiff in the cross examination on 29.10.2014 to the effect that in syno.130/1 they have sold an extent of 2 acres 35 guntas and there remains no extent of land measuring 3 acres 24 guntas and only 1 acre is presently available. Such being the case, the first appellate court committed an error in holding that plaintiffs suit is for entire extent of 3 acres 24 guntas and as such suit ought not have been dismissed on the ground of limitation, is highly erroneous and against available materials on record.
When there is a sale deed executed between one Khasim Sharief and first defendant with respect to the suit property, that sale deed is nothing but denying the title and possession not only of the plaintiffs but also others except the vendor and that is the date on which the alleged title of the plaintiffs is categorically denied and the right to sue to the plaintiff accrues from the date of sale deed itself. Such being the case, the first appellate court committed a grave error in holding that there was no denial of the title of the plaintiffs.
The first appellate court committed an error in holding that the question of limitation cannot be treated as preliminary issue. It is respectfully submitted under Order -6- NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR 14 Rule 2(b) of CPC the issue of limitation has to be treated as preliminary issue and if the suit is barred by limitation there is no necessity to give any finding on other issues. In order to maintain the suit, the plaintiffs first of all have to establish that the suit is in time and if it is not in time there is no necessity to go further and to decide other issues and factors concerning the suit. Such being the case the first appellate court committed a grave error more so in the light of the parties tendering themselves to adduce evidence on preliminary issue.
It is respectfully submitted that it is always at the discretion of the trial court to decide the issue of limitation and more so in the particular case when there is already an order passed to treat issue no.7 as preliminary issue.
The first appellate court totally misdirected itself as to the scope of preliminary issue with that of rejection of plaint under Order VII Rule 11(d) of CPC. The case on hand does not come under Order 7 Rule 11(d) of CPC and the defendants have not sought to reject the plaint but however requested the court to treat the issue no.7 on limitation as preliminary issue and record the evidence of the parties and to decide the same. The first appellate court committed an error in this regard.
The first appellate court ignored order 14 Rule 2(b) and only looked at the provisions of Order 14 Rule 2 of CPC -7- NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR only while holding that it is mandatory for court to pronounce judgment on all issues.
The first appellate court lost sight of the fact that there is recording of evidence by the trial court before deciding the issue and thus committed an error in holding that since the question of limitation being mixed question of law and facts which requires the recording of evidence could not be tried as preliminary issue.
The first appellate court misdirected itself with regard to the appropriate article under the limitation act applicable to the case on hand and committed an error in holding that it is Article 113 which ought to have been looked into by the trial court and not Article 58.
The first appellate court committed an error in holding that there is no denial of ownership at earlier point of time and the suit is not only in respect of alienated portion of suit schedule property measuring 1 acre but the same was filed in respect of larger extent of 3 acres 24 guntas. It is submitted that the suit with respect to 1 acre of land even otherwise concerning the claim of the second defendant should be dismissed as barred by time and the first appellate court if so ought to have continued the suit for remaining extent of 2 acres 24 guntas against other defendants only.
Even though the first appellate court after having come to conclusion that the order passed by the trial court treating the issue as preliminary issue has reached its -8- NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR finality and same cannot be questioned, committed an error in setting aside the same.
The first appellate court committed an error in holding that the suit ought not have been dismissed by holding the same as barred by time when admittedly the title of the plaintiff over remaining 2 acres 24½ guntas were not at all questioned by anybody, by completely ignoring the clear admission of the plaintiffs in this regard.
The first appellate court did not choose to give any finding on the clear admissions of the plaintiffs with respect to the knowledge of sale deed and receipt of certified copies of sale deeds. These admissions made by the plaintiffs clearly indicate that the plaintiffs were fully aware of the sale deed made by Khasim Sharief in favor of first defendant and the they came to know about the said transaction 10-12 years back and as per Ex.P16 they have obtained copy of the said sale deed on 24.09.1998 itself and more so the first defendant in the year 2000 itself based on the title created in his favor on the strength of sale deed dated 11.09.1986 filed a suit against them. The first appellate court completely ignored these admissions made with regard to the knowledge of the sale deed dated 11.09.1986 in favor of first defendant which is nothing but clear denial of their right over the suit property. The plaintiff have also admitted that on the strength of sale deed the revenue records have been mutated in favor of first defendant and they were aware -9- NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR of the same and the Katha might have been changed in the name of first defendant in the year 1986 itself.
The first appellate court committed an error in giving a categorical finding on the judgment of the trial court by holding that it is erroneous and capricious. In view of this finding the trial court subsequent to the remand even though the remand is made to give finding on all the issues would not be in a position to give any finding on issue no.7. The first appellate court committed an error in giving finding and remanding the matter for fresh disposal.
5. Sri. P.N. Harish learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that evidence was recorded before the Trial Court on the question of limitation. Based on the fact that the original owner has sold the property in favour of the contesting respondents and also taking note of the averments made in the plaint as well as the answers elicited in the cross-examination of PW1 in the Trial Court on the issue of limitation, the learned Trial Judge was justified in dismissing the suit only on the question of limitation treating the said issue as
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NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR preliminary issue. Therefore, order of remand passed by the First Appellate Court is bad in law.
6. Per contra, Sri. M.V.Hiremath, learned counsel for the contesting respondent supports the order passed by the First Appellate Court in remitting the matter to the Trial Court for consideration of the case of the parties on all issues and pass appropriate orders.
7. Having heard the arguments of both sides, this Court perused the material on record meticulously.
8. On such perusal of material on record, it is crystal clear that suit came to be filed in O.S. No.48/2013 for the relief of declaration and permanent injunction. Suit was contested and necessary issues were raised by the learned Trial Judge. One such issue was, whether the suit was filed in time. The said issue was at issue No.7.
9. Learned Judge in the Trial Court, after hearing the parties, dismissed the suit of the plaintiffs by recording
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NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR the finding on issue No.7 alone and was of the considered opinion that the suit of the plaintiff was barred by time by applying Article 58 of the Limitation Act.
10. The same was called in question by the plaintiffs before the First Appellate Court.
11. Learned Judge in the First Appellate Court after reconsidering the relevant material on record found that issue No.7 would not have been treated as a preliminary issue as it is a mixed question of law and fact, and evidence was necessary to be recorded on all issues, recorded a finding that the learned Trial Judge was bound to consider the case of the parties on all issues including the question of limitation and held that dismissal of the suit only on issue No.7 has resulted in miscarriage of justice. Accordingly, set-aside the Order of the learned Trial Judge and remitted the matter to the Trial Court for fresh disposal in accordance with law.
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12. As could be seen from the operative portion of the Order of the First Appellate Court, the remand order was an open remand. The learned Judge in the First Appellate Court directed the Trial Court to proceed with the suit from the stage of hearing the suit and directed to record the evidence of the parties on all the issues and to dispose of the case on merits. It is to be noted that before the Trial Court evidence was recorded only on issue No.7 and not on all issues.
13. Further, Order XX Rule 5 of the Code of Civil Procedure contemplates that when once the parties have joined the issues and the evidence has been recorded by the Trial Court on all issues, it is the mandatory duty on the part of the Trial Judge to record findings on all issues and not on any particular issue alone.
14. Even assuming that the learned Trial Judge is of the opinion that the suit is barred by time, it could have recorded such a finding on issue No.7 and was bound to
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NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR answer the other issues one way or the other as the order of the Trial Judge was appealable order before the First Appellate Court under Section 96 of the Code of Civil Procedure.
15. In this regard, this Court gainfully places reliance on the judgment rendered by this court in RSA No.1811/2005 in the case of Malappa Ramappa Naik and others vs. Sri. Ittappa Kamappa Banti and others reported in ILR 2020 Kar 5417. The relevant portion of the judgment reads as under:
ORDER XIV Rule 2:
Rule 2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
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(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue.
ORDER XX RULE 5 OF CPC:
"5. Court to state its decision on each issue. -- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."
16. The word judgment is defined in Section 2 (9) of the CPC. The same is culled out hereunder for ready reference.
Section. 2(9) : a "judgment" to mean the statement given by the Judge on the grounds of a decree or order.
17. Learned Trial Judge treated issue No.7 as a preliminary issue. Same could not have been done in view of the mandate under Order XIV of the Code of Civil Procedure, wherein question of jurisdiction and
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NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR insufficiency of court fee alone can be treated as preliminary issue and no other issue.
18. Moreover, question of limitation in majority of the suits is mixed question of law and facts except where apparently the suit is barred by limitation by computing the date of plaint and the suit document. Therefore, in the case on hand, since issue No.7 was to be treated as mixed question of law and fact, said issue could not have been treated as a preliminary issue.
19. View of this Court in this regard is supported by principles of law enunciated in the decision of the Hon'ble Apex Court in the case of Sathyanath and another vs Sarojamani reported in (2022)7 SCC 644. Relevant paragraphs in the said decision are culled out hereunder:
21. The provisions of Order 14 Rule 2 are part of the procedural law, but the fact remains that such procedural law had been enacted to ensure expeditious disposal of the lis and in the event of setting aside of findings on preliminary issue, the possibility of remand can be avoided, as was the language prior to the unamended Order 14 Rule 2. If the issue is a mixed issue of law and fact, or issue of
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NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR law depends upon the decision of fact, such issue cannot be tried as a preliminary issue. In other words, preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the court or the bar to the suit is made out, the court may decide such issues with the sole objective for the expeditious decision. Thus, if the court lacks jurisdiction or there is a statutory bar, such issue is required to be decided in the first instance so that the process of civil court is not abused by the litigants, who may approach the civil court to delay the proceedings on false pretext.
22. In fact, in a judgment reported as A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam [A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430 : (2012) 3 SCC (Civ) 735] , this Court held as under : (SCC p. 458, para 39) "39. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, at a later stage, but once discovered, it is the duty of the court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants."
23. The different judgments of the High Court referred to above are in consonance with the principles laid down by this Court in Ramesh B. Desai [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638] that not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fell within
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NC: 2025:KHC:30634 MSA No. 87 of 2021 HC-KAR the ambit of clause (a) relating to the "jurisdiction of the Court" and (b) which deal with the "bar to the suit created by any law for the time being in force". The reason to substitute Rule 2 is to avoid piecemeal trial, protracted litigation and possibility of remand of the case, where the appellate court differs with the decision of the trial court on the preliminary issues upon which the trial court had decided.
20. Having said thus, the First Appellate Court remitting the matter to the Trial Court with regard to evidence on all issues and rehearing the suit including issue No.7 cannot be faulted with. As such, the Order passed by the First Appellate Court needs to be confirmed.
21. Hence, following Order:
ORDER
(i) Appeal is dismissed.
(ii) Taking note of the fact that the suit of the year 2013, learned Trial Judge shall dispose of the same as expeditiously as possible.
Sd/-
(V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 33