SHIVAPPA VS. SHANTAVVA

2026 INSC 8571

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2026

@ SPECIAL LEAVE PETITION (CIVIL) NOS. 22982-22983 OF 2026

SHIVAPPA … APPELLANT(S)

VERSUS

SHANTAVVA AND OTHERS … RESPONDENT(S)

J U D G M E N T

S.V.N. BHATTI, J.

1. Leave granted.

2. The Impugned Judgment allowed RFA No. 100251 of 2020 and RFA

CROB No. 100005 of 2023 to the extent of Item No. ‘5’ of the Plaint Schedule

Property and remitted the matter to the Trial Court to frame issues, afford

the parties an opportunity to adduce further evidence, and thereafter dispose

of the Suit to the extent of Item No. ‘5’ of the Plaint Schedule in O.S. No. 143

of 2015.

3. The consideration is confined to whether remand to the Trial Court is

justified and lawful in the circumstances of the case. The Appellant is

Defendant No. 2 in O.S. No. 143 of 2015 in the Court of I Addl. Senior Civil

Judge & CJM, Dharwad. Respondent Nos. 1 and 2 were among the Plaintiffs,

and the Suit was filed on 17.03.2015 seeking Partition and Separate

Possession of the Plaint Schedule Items Nos. ‘1’ to ‘5’, and a declaration that

the Sale Deed executed by one Madiwalappa in favour of Defendant No. 2 is

illegal, null and void, and not binding on the Plaintiffs’ share and entitlement.

Plaintiff No. 1, Sharawwa, died during the pendency of the Suit.

4. The Plaintiffs contended that a Hindu Undivided Joint Family

comprising the Plaintiffs and Defendant No. 1 existed. Madiwalappa was the

propositus. The Plaint Schedule Properties are ancestral properties inherited

through Madiwalappa and his predecessors-in-interest. On 28.06.1982, a

registered sale deed for Suit Schedule Property Item No. ‘5’ was executed by

Madiwalappa in favour of Defendant No. 2. Item No. ‘5’ comprises 5 Acres 12

Guntas in RS/Block No. 137/3 in Amminbhavi village, Dharwad Taluk. The

Plaintiffs allege that the said Sale Deed dated 28.06.1982 was sham and

bogus. Madiwalappa was addicted to bad habits and vices. Therefore, the

transfer of Item No. ‘5’ does not affect the rights and entitlements of the

Plaintiffs and Defendant No. 1 in Item No. ‘5’ of the suit property. There was

no legal necessity, and the family has not derived any benefit from the sale

deed dated 28.06.1982. Accordingly, the Suit was filed for the purposes

referred to above. We do not refer to the Written Statement filed by Defendant

No. 1, both for the view taken by the High Court and because Defendant No.

1 has not challenged the Decree and Judgment of the High Court dated

27.04.2026. We make it clear that, in the absence of a challenge to Item Nos.

‘1’ to ‘4’ of the Suit Schedule, we are not considering the same.

4.1 Defendant No. 2 has resisted the Suit by contending that Item No. ‘5’

of the Suit Schedule was purchased by him and that he holds valid title. The

Sale Deed dated 28.06.1982 is valid and binding on the Plaintiffs and

Defendant No. 1. The Sale Deed was executed to repay a loan borrowed by

Madiwalappa for his daughter’s marriage expenses and to repay a bank loan.

From the date of execution of the Sale Deed in his favour, he has been in

exclusive possession and enjoyment of the Suit Schedule property No. 5 as

the absolute owner. It is further contended that the Plaintiffs have filed the

Suit in collusion with Defendant No. 1 to grab Item No. ‘5’ of the Suit

Schedule.

5. The Trial Court framed the following Issues:

“1. Whether the Plaintiffs prove that, they and the 1st

Defendant constitute a Hindu undivided joint family and

schedule properties are the ancestral properties?

2. Whether the 2nd Defendant proves that, on 04.01.1980,

partition took place between Yallappa, Madiwalappa,

Shankrappa, Rayappa, Shivappa and Smt. Mallawwa?

3. Whether the 2nd Defendant proves that, Madiwalappa sold

suit Item No. 5 property by Registered Sale Deed dtd.

28.06.1982 for family legal necessity?

4. Whether the Plaintiffs are entitled to the plaint relief?

5. What Order or Decree?”

6. The Suit was decreed in part, resulting in RFA No. 100251 of 2020 and

RFA. CROB No. 100005 of 2023. The Trial Court, on the Plaintiffs’ prayer for

partition of Items Nos. 1 to 4, accepted the Plaintiffs’ case and recorded that

Defendant No. 1 supports the Plaintiffs’ case. Defendant No. 2, the only

contesting party, does not dispute the case made out by the Plaintiffs and

the defence taken by Defendant No. 1 in claiming their share in the Suit

Schedule properties Nos. 1 to 4. In view of the pleadings and evidence, the

Suit Schedule properties are ancestral properties of Madiwalappa, which he

acquired in a family partition dated 04.01.1980. Plaintiffs Nos. 2 and 3 and

Defendant No. 1, who are admittedly joint family members, have equal

shares, i.e., 1/3rd shares, in the Suit Schedule properties Nos. 1 to 4.

7. The crucial aspects concerned in the Civil Appeals are Item No. ‘5’ and

Issue Nos. ‘2’ and ‘3’ framed by the Trial Court.

7.1 After considering the pleadings and oral and documentary evidence, the

Trial Court held that the Plaintiff failed to produce any credible evidence to

prove that Madiwalappa was addicted to bad vices. The Sale Deed is registered

in accordance with the law and is valid in the eyes of the law.

7.2 The Plaintiffs and Defendant No. 1 have not disputed the signature of

Madiwalappa on the Sale Deed. On the date of execution of the Sale Deed,

Madiwalappa was the Karta of the HUF. It is natural and believable that in

1982, Madiwalappa was responsible for the family's affairs, comprising the

Plaintiffs and Defendant No. 1, as his son, Defendant No. 1, was a minor.

7.3 Further, the recitals of the Sale Deed show that Defendant No. 2 was

33 years old; that Madiwalappa required funds to discharge loans he had

taken for marriage; and that a valuable sale consideration of Rs. 16,000/-

was paid by Defendant No. 2 to the late Madiwalappa.

7.4 Since the Suit schedule property No. 5 is situated abutting the land of

Defendant No. 2, he had purchased the Suit schedule Item No. ‘5’ from

Madiwalappa for convenient cultivation.

7.5 Regarding possession, the Trial Court has held that the recitals in the

Sale Deed show that possession was handed over to Defendant No. 2 on the

date of its execution. It cannot be said that Defendant No. 2 was not in

possession merely because his name was not mentioned in the Revenue

records. Possession follows title, and Defendant No. 2 has acquired title

through the registered Sale Deed dated 28.06.1982.

7.6 Further, on the question of limitation, the Trial Court observed that the

Plaintiffs challenged the Sale Deed thirty-three years after its execution. As

per Articles 58 and 59 of the Limitation Act, 1963, the challenge must be

made within three years from the date of execution or knowledge. Hence, the

Plaintiffs were denied the relief of declaration.

8. The High Court, through the Impugned Judgment, while confirming

the findings of the Trial Court on Item Nos. ‘1’ to ‘4’ of the Suit Schedule,

reversed the findings on Item No. ‘5’ and remitted the matter to the Trial

Court, as noted above. We will, in general, deal with the findings of the

Impugned Judgment on the lack of averments and evidence, primarily on

possession, limitation, etc. The findings of the High Court can be

summarised as follows:

8.1 There was no dispute among the parties regarding the partition effected

by the Partition Deed dated 04.01.1980, and the only contention of the

Plaintiffs was that the Sale Deed dated 28.06.1982 was a sham document and

that it was not acted upon. When such a specific pleading was made in the

Plaint to that effect, the Trial Court ought to have framed the issue as to

whether the said Sale Deed was a sham document and whether the parties

had acted upon it.

8.2 Even though Defendant No. 2 did not take the defence that the Suit is

barred by limitation, it was the duty of the Court to frame an issue regarding

limitation, as limitation is a question of law.

8.3 The Appellants did not place any material before the Court to prove

their possession of the subject property from the date of execution of the Sale

Deed in their favour. Such being the case, the matter requires reconsideration

to address the issue of limitation, as well as whether the Sale Deed is a sham

document and whether the parties have acted upon it, to be decided by the

Trial Court in addition to the possession.

8.4 The material available on record, particularly with regard to the issues

involved between the parties, was not raised by the Trial Court as

contemplated under Section 3(1) as well as Article 109 of the Limitation Act.

8.5 It is a case for remitting the matter to the Trial Court to reconsider it

afresh and frame appropriate issues, and, if necessary, to allow the parties to

adduce evidence, and the Trial Court shall give them an opportunity to adduce

their evidence for proper adjudication.

9. Hence, the Civil Appeals.

10. Mr. Sharanagouda Patil, Counsel for Defendant No. 2, contends that

the remand of Item No. ‘5’ of the Suit Schedule to the Trial Court is, prima

facie, illegal and unwarranted. Issue Nos. ‘2’ and ‘3’ are complete and

comprehensive in light of the averments in the Plaint and the Written

Statement. The First Appellate Court is required not only to determine

whether the Judgment and Decree of the Trial Court are legal and tenable in

the circumstances of the case, but also to exercise all the jurisdiction the

Trial Court had to decide the issues while disposing of the Appeal. The

remand is avoidable and will perpetuate litigation between the parties for

another decade or two. The Plaintiffs are praying for a declaration regarding

the Sale Deed executed on 28.06.1982, and Defendant No. 2 is resisting the

Suit. The pleadings are complete, and nothing more is needed from that

perspective. The issues framed not only test the limitation but also the legal

necessity, binding nature, and the consequential effect of filing a Suit on

17.03.2015. He relies on Ashwini Kumar K. Patel v. Upendra J. Patel & Ors.,1

for the proposition that the remand of a matter is not a matter of course but

is guided by judicial discretion.

11. Mr. Sanket Shankrappa Ambali, Counsel for the Respondents, argues

that the remand does not prejudice either party and that not only is an issue

framed, but the Impugned Judgment also directed the Trial Court to afford

an opportunity to adduce further evidence. Therefore, while the Plaintiffs are

required to place evidence of knowledge, etc., to bring the Suit within the

period of limitation, Defendant No. 2 is required to prove exclusive possession

claimed pursuant to the Sale Deed dated 28.06.1982. In deciding the

question of limitation, the possession claimed will also be decided. Therefore,

the Order of remand is sustainable.

12. We have taken note of the limited submissions of the Learned Counsel

appearing for the parties and perused the record.

1 (1999) 3 SCC 161.

13. In the circumstances of the case, the question for consideration is

whether the remand for reconsideration of the prayer for partition and

declaration regarding Item No. ‘5’ in the Impugned Judgment is valid in law.

14. Before reverting to the reasons in the Impugned Judgment, a few

leading precedents on the point, including the one on which the Defendant

No. 2 has relied, are referred to.

14.1 In Ashwini Kumar (supra), this Court has held as follows:

“8. In our view, the High Court should not ordinarily

remand a case under Order 41 Rule 23 CPC to the lower court

merely because it considered that the reasoning of the lower

court in some respects was wrong. Such remand orders lead

to unnecessary delays and cause prejudice to the parties to

the case. When the material was available before the High

Court, it should have itself decided the appeal one way or the

other. It could have considered the various aspects of the case

mentioned in the order of the trial court and considered

whether the order of the trial court ought to be confirmed or

reversed or modified. It could have easily considered the

documents and affidavits and decided about the prima facie

case on the material available. In matters involving

agreements of 1980 (and 1996) on the one hand and an

agreement of 1991 on the other, as in this case, such remand

orders would lead to further delay and uncertainty. We are,

therefore, of the view that the remand by the High Court was

not necessary.”

In P. Purushottam Reddy & Anr. v. Pratap Steels Ltd.2, this Court was

of the view that:

“11. It is true that a specific issue was not framed by the

trial court. Nevertheless, the parties and the trial court were

very much alive to the issue whether Section 16(c) of the

Specific Relief Act was complied with or not and the

contentions advanced by the parties in this regard were also

adjudicated upon. The High Court was to examine whether

such finding of the trial court was sustainable or not — in law

and on facts. Even otherwise the question could have been

gone into by the High Court and a finding could have been

recorded on the available material inasmuch as the High

Court being the court of first appeal, all the questions of fact

and law arising in the case were open before it for

consideration and decision.”

2 (2002) 2 SCC 686.

In Zarif Ahmad(Dead) Through LRs. & Anr. v. Mohd. Farooq3, it

was held:

“13. No doubt, Section 107 CPC empowers the appellate

court to remand a case, but it simultaneously empowers the

appellate court to take additional evidence or to require such

evidence to be taken. Rule 24 Order 41 CPC provides that

where evidence on record is sufficient, the appellate court

may determine the case finally. It is not a healthy practice to

remand a case to the trial court unless it is necessary to do

so as it makes the parties to wait for the final decision of a

case for the period which is avoidable. Only in rare situations

should a case be remanded, e.g., when the trial court has

disposed of a suit on a preliminary issue without recording

evidence and giving its decision on the rest of the issues, but

it is not so in the present case.”

15. The High Court has recorded its findings on the partition, said to have

taken place on 04.01.1980, among Yallappa, Madiwalappa, Shankarappa,

Rayappa, Shivappa, and Mallawwa, as evidenced by a registered partition

deed. The Plaintiffs' case is that the Sale Deed executed on 28.06.1982 for

one of the items partitioned on 04.01.1980 is sham, void, and not binding on

the Plaintiffs. Accordingly, the High Court held that the Trial Court erred in

not framing a specific issue on the validity of the Sale Deed dated 28.06.1982.

Defendant No. 2 has not specifically averred in the Written Statement that

the Suit is barred by limitation. Under Section 3 of the Limitation Act, it is

the duty of the Court to decide whether the Suit is within the period of

limitation, and for that purpose, a specific issue ought to have been framed.

Defendant No. 2 claims exclusive possession, and a separate issue ought to

have been framed.

3 (2015) 13 SCC 673.

16. The reason for remand assigned by the High Court is that, despite a

plea that the Sale Deed dated 28.06.1982 is sham and nominal, no issue was

framed. We have perused the Plaint and Written Statement. Issue No. 2,

excerpted supra, is a comprehensive issue regarding the partition dated

04.01.1980. Similarly, Issue No. 3 covers the sale of Item No. ‘5’ of the Suit

Schedule in favour of Defendant No. 2, whether valid or not. Therefore, the

Trial Court has not decided the Suit without relevant issues being presented

by the pleadings of the parties. In our view, remand is not to be adopted as

a matter of ordinary course, and the Judgment of remand reflects the

Appellate Court’s incorrect exercise of its discretion. In the case at hand, the

parties have adduced oral and documentary evidence in accordance with the

burden and onus of proof fastened on them. At this stage, directions are given

to reframe issues, adduce further evidence, and afford the parties a further

opportunity to lead evidence. There were no circumstances preventing the

first appellate court from deciding the points in issue. Consequently,

remanding the case to the Trial Court is completely contrary to the legal

principles laid down by this Court in the decisions mentioned above. The

correctness or otherwise of the case of the contesting parties is appreciated

from the pleadings, issues, oral and documentary evidence, and a finding

can be returned instead of remitting the matter to the Trial Court. Our view

may not be understood as holding that the Appellate Court, in the given

circumstances, cannot provide opportunities to the parties to adduce

evidence, including after accepting a prayer under Order 41 Rule 27 of the

Civil Procedure Code, 1908. We express our view that such discretion for

remand is exercised when imminently warranted by the circumstances of a

given case.

17. As this Court is considering whether the remand is justified, we are

not examining the other contentions canvassed by both sides, which, in our

view, would touch upon the merits of the matter. Hence, the findings in the

Impugned Judgment vis-à-vis item No. ‘5’ of the Suit Schedule, and the Order

of remand to the Trial Court are set aside. For the said limited purpose, the

appeals are restored, and we request the High Court to dispose of the Appeals

on the merits.

18. Civil Appeals are allowed.

19. Pending Application(s), if any, shall stand disposed of accordingly.

20. No order as to costs.

..……….…………………J.

[S.V.N. BHATTI]

..…………………………J.

[N.V. ANJARIA]

New Delhi;

August 13, 2026.