Allowed

Mr. Jagannath. D v. Sri. D. Umashankar

Karnataka HC7 Jun 2023RFA/889/2019

Case brief

AI extract

What is this about?

The appellant challenged the dismissal of a suit for declaration of title and possession. The High Court allowed the appeal, set aside the lower court decree, and remitted the matter for a fresh trial on terms, including payment of costs to respondent No.4.

What did the court decide?

Appeal allowed. Set aside judgment and decree dtd 02.03.2019. Remitted for fresh trial. Costs of Rs.25,000 payable by appellant to respondent No.4.

Mr. Jagannath. D Vs Sri. D. Umashankar — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:19464 RFA No. 889 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA REGULAR FIRST APPEAL NO.889 OF 2019 (DEC/INJ)

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BETWEEN:

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MR. JAGANNATH. D AGED ABOUT 54 YEARS, S/O. DAKSHINAMURTHY, RESIDING AT NO.76/1, 15TH CROSS, 4TH MAIN, MALLESHWARAM, BENGALURU-55.

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Digitally signed by MALA K N Location: HIGH COURT OF KARNATAKA

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MRS. T. C. SONI AGED ABOUT 44 YEARS, W/O. JAGANNATH. D, RESIDING AT NO.76/1, 15TH CROSS, 4TH MAIN, MALLESHWARAM,

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BENGALURU-55.

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…APPELLANTS

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(BY SRI P. MAHESHA, ADVOCATE)

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AND:

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SRI. D. UMASHANKAR FATHERS NAME NOT KNOWN, HINDU MAJOR,

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2 - NC: 2023:KHC:19464 RFA No. 889 of 2019

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NO.98/1, 2ND MAIN, 4TH CROSS, G.R. NAGAR, BENGALURU-560 056.

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SRI. NARAYANA S/O. LATE HANUMANNA, RESIDING AT MALATHAHALLI VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU-560 056.

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SRI. H. CHIKKANNA S/O. LATE HANUMANNA, HINDU, MAJOR, RESIDING AT MALATHAHALLI VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU-560 056.

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SRI. B. SHIVAKUMAR S/O. LATE BASAPPA, AGED ABOUT YEARS, RESIDING AT NO.39, JNANAJYOTHI NAGAR, 9TH CROSS ROAD, ULLALU MAIN ROAD, BENGALURU-560 056.

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…RESPONDENTS

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(BY SRI PRADEEP J.S., ADVOCATE FOR R4)

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THIS REGULAR FIRST APPEAL IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.03.2019 PASSED IN OS.NO.4953/2015 ON THE FILE OF THE XXIV ADDL.CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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NC: 2023:KHC:19464 RFA No. 889 of 2019

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, P.S. DINESH KUMAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Shri P. Mahesha, learned Advocate for the appellant.

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This appeal is by the plaintiff challenging the common judgment and decree dated 02.03.2019 passed in Original Suits No.6032/2013 c/w 4953/2015 on the file of XXIV Additional City Civil & Sessions Judge, Bengaluru.

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At the outset, Shri P. Mahesha, submitted that while conducting the case, there has been a lapse on the part of respondent in not filing an application for appointment of Court Commissioner. The suit is one for declaration of title and possession of the alleged encroached portion against defendants.

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He further submitted that defendants have not let in any evidence. He prays that in the facts and circumstances of this case, this appeal may be allowed and the matter may be remitted to the file of the trial Court for fresh trial.

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NC: 2023:KHC:19464 RFA No. 889 of 2019

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After hearing Shri. Mahesh for sometime on the last

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date of hearing, we had called upon Shri J.S. Pradeep, learned Advocate for respondents to complete instructions. Today he

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submits that respondents are agreeable for allowing this appeal, subject to payment of cost of Rs.25,000/- to respondent No.4. His submission is placed on record.

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We have perused the judgment and decree. The facts

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stated by Shri P. Mahesha, are in consonance with the facts recorded in the judgment. In the circumstance, in our opinion,

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ends of justice would be met by remitting the matter for fresh trial on terms. Hence the following:

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O R D E R

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(i) Appeal is allowed with costs of Rs.25,000/payable by the appellant to the respondent No.4;

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(ii) Judgment and Decree in Original Suit No.4953 of 2015 is set aside;

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(iii) Matter is remitted to the file of the learned trial Judge for fresh trial;

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5 - NC: 2023:KHC:19464 RFA No. 889 of 2019

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(iv) Parties shall appear before the trial Court on 05^th July, 2023 without waiting for court notice;

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(v) Registry to refund the court fee in the name of the first appellant, if necessary application is filed by the parties.

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In view of disposal of the main matter, all pending IAs

stand disposed of.

No costs.

SD/JUDGE

SD/JUDGE

LNN List No.: 1 Sl No.: 39

Mr. Jagannath. D v. Sri. D. Umashankar

Case brief

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Mr. Jagannath. D v. Sri. D. Umashankar

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