SIDDARAI BASAVANT PADAGAL Vs. RUDRAPPA BASAVANNEPPA PADAGAL

JUDGEMENT

(1.) The present appeal is filed under Order 43 Rule 1(u) of CPC challenging the order of remand passed by the learned II Additional Senior Civil Judge, Belgaum in R.A.No.74/2010.

(2.) Heard the learned counsel for the appellant and perused the judgment of the trial Court passed by the IV Additional Civil Judge & JMFC, Belgaum in O.S.No.1148/2008 on 21.06.2010. Plaintiff had filed the suit initially for the relief of permanent injunction and later on got the suit converted into one for the main relief of declaration of title. On the basis of the written statement filed by the defendants therein, an issue regarding limitation has been framed and was heard as preliminary issue. The learned Judge of the trial Court has come to the conclusion that the suit filed in the year 2008 for the relief of declaration of title to the effect that the sale deed dated 12.05.1974 is null and void is barred by time. Hence, issue regarding limitation has been answered in the affirmative. This order dated 21.06.2010 passed on preliminary issue had been called in question before the II Additional Senior Civil Judge, Belgaum by filing a regular appeal under Section 96 of CPC in R.A.No.74/2010.

(3.) On hearing the counsel appearing for the parties and perusing the records of O.S.No.1148/2008, the learned Judge of the first appellate Court has come to the conclusion that question of limitation is a mixed question of both law and facts and hence such an issue should not have been treated as a preliminary issue. Therefore, the learned Judge of the first appellate Court has remanded the matter to the trial Court with a direction to consider the issue regarding limitation along with other issues after holding a full fledged trial. It is this order dated 21.01.2013 which is called in question on various grounds as set out in the appeal memo filed before this Court.