Karnataka High Court
Girish T S vs Sri. T. H. Shivamurthayappa on 25 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:28607
RSA No. 616 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.616 OF 2021 (DEC)
BETWEEN:
1. GIRISH T.S.,
S/O LATE T.S.JANARDHANA
AGED ABOUT 51 YEARS
R/O NO.150/1, SHIVA BUILDING
12TH CROSS, K.T.J.NAGARA
DAVANAGERE-577002.
...APPELLANT
(BY SRI. GOPALAKRISHNAMURTHY C., ADVOCATE)
AND:
1. SRI. T.H.SHIVAMURTHAYAPPA
S/O THURAPURTTI HALAPPA
AGED ABOUT 65 YEARS
Digitally signed R/O PROPRIETOR OF WINE SHOP
by DEVIKA M THYAVANIGE VILLAGE
Location: HIGH CHANNAGIRI TALUK
COURT OF
KARNATAKA DAVANAGERE DISTRICT-577213.
...RESPONDENT
(NOTICE TO RESPONDENT IS HELD SUFFICIENT,
VIDE ORDER DATED 10.07.2025)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.11.2020
PASSED IN R.A.NO.71/2018 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 28.04.2018 PASSED IN O.S.NO.62/2016 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI.
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NC: 2025:KHC:28607
RSA No. 616 of 2021
HC-KAR
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for the appellant. This Court has issued notice against the respondent and the same has been served and unrepresented.
2. The main contention of the counsel appearing for the appellant before this Court that the Trial Court only on the ground of non-arraying of brother as party to the suit, held that relief of declaration is sought and hence the said suit is not maintainable. Being aggrieved by the said order, an appeal is filed before the First Appellate Court. The First Appellate Court also formulated the point No.1 and answered the same as not correct and Trial Court committed an error in dismissing the suit. However, in respect of other two points are concerned, answered as negative that appellant cannot seek for the relief of declaration and it doesn't require interference. -3-
NC: 2025:KHC:28607 RSA No. 616 of 2021 HC-KAR
3. The counsel would vehemently contend that only the suit is dismissed on the ground that not made brother as a party to the proceedings. When the Appellate Court comes to the conclusion that Trial Court committed an error in answering the point No.1 for consideration and Appellate Court ought not to have dismissed the appeal. The counsel would contend that the First Appellate Court ought to have remitted back the matter to the Trial Court to make the necessary party in the suit and dispose of the same on merits and no such opportunity is given and hence matter requires to be reconsidered and matter may be remitted back to the Trial Court.
4. Having heard the appellant's counsel, the substantive question of law arises for the consideration of this Court are:
1) Whether the Appellate Court ought to have remanded the matter to Trial Court to make the brother of the appellant as party to the proceedings and remitted -4- NC: 2025:KHC:28607 RSA No. 616 of 2021 HC-KAR back the same with a direction to consider the matter afresh?
2) What Order?
5. Having heard the appellant's counsel and also on perusal of material on record, particularly the suit is filed for the relief of declaration. Admittedly, in the pleadings, the property belongs to one Rohitaksha, who is uncle of the plaintiff, who died unmarried and also his other brothers have also predeceased and when the plaintiff claims that he succeeded to the property and Trial Court made an observation that one of his brother is alive and he also become the legal heir and plaintiff is not the only legal heir of his father and hence an observation is made that without arraying the brother as party to the proceedings, he cannot be declared as owner and no doubt Trial Court also not directed the plaintiff to make him as party to the proceedings to consider the matter on merits and dismissed only on the ground that he has not been made as party and though defendant claims that he was -5- NC: 2025:KHC:28607 RSA No. 616 of 2021 HC-KAR an agreement holder and the same is also not substantiated. The Appellate Court also though formulated the point for consideration that is point No.1, answered the same as affirmative in coming to the conclusion that the Trial Court committed an error only on the ground that non-joinder of necessary parties ought not to have dismissed the same, but ought to have remitted back the matter to the Trial Court to make his brother as party to the proceedings but not done the same, but erroneously dismissed the appeal in coming to the conclusion that not entitled for the relief of declaration and possession and it doesn't require any interference and the very approach of the Appellate Court is also erroneous and no doubt the plaintiff also not made his brother as party to the proceedings in the suit and ought to have sought permission before the Trial Court itself and not done the same and even in the Appellate Court also not made any attempt to seek for the relief of remanding the matter, but only in second appeal, he sought such relief and having -6- NC: 2025:KHC:28607 RSA No. 616 of 2021 HC-KAR taken the note of the said fact into consideration, the Appellate Court also ought to have remanded the matter, but not done the same and it requires interference of this Court. Hence, I answer the substantive question of law as affirmative.
6. Having considered the suit is of the year 2016 almost 9 years has been elapsed and in both the suit as well as in the appeal, the brother is not made as party and when such being the case, it is appropriate to direct the appellant to make an application within 1 month from the date of 28.08.2025 and then Trial Court is directed to issue notice on the proposed respondent and dispose of the same within a period of 6 months since the suit is of the year 2006. The plaintiff is directed to pay the cost of Rs.10,000/- on the defendant and the same is payable on the next date of hearing when the respondent appears before the Trial Court.
7. The appellant shall appear before the Trial Court on 28.08.2025 without expecting any notice from -7- NC: 2025:KHC:28607 RSA No. 616 of 2021 HC-KAR the Trial Court and also to tender the cost on the defendant on his appearance and intimate the counsel on record to appear on 28.08.2025.
8. The Registry is directed to send the records forthwith to enable the Trial Court to take up the matter on 28.08.2025.
Sd/-
(H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 58