Disposed

Thimmegowda v. Sadashivamurthy

Karnataka HC13 Sept 2024MSA/20/2023

Case brief

AI extract

What is this about?

The High Court disposed of six miscellaneous second appeals filed by a common appellant against lower appellate judgments remanding property declaration suits to the trial court. The Court upheld the remand order, directing the trial court to appoint a commissioner and noting that existing admissions regarding ownership claims must not be withdrawn. Disposition: disposed.

What did the court decide?

All appeals disposed of; first appellate court's remand order maintained; defendant directed to be heard on plaintiffs' additional documents and permitted to place additional evidence.

Thimmegowda Vs Sadashivamurthy — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 20 OF 2023 (RO) C/W

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MISCELLANEOUS SECOND APPEAL NO. 15 OF 2023 (RO), MISCELLANEOUS SECOND APPEAL NO. 16 OF 2023 (RO), MISCELLANEOUS SECOND APPEAL NO. 17 OF 2023 (RO), MISCELLANEOUS SECOND APPEAL NO. 18 OF 2023 (RO), MISCELLANEOUS SECOND APPEAL NO. 19 OF 2023 (RO), MISCELLANEOUS SECOND APPEAL NO. 21 OF 2023 (RO)

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IN MSA No. 20/2023

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BETWEEN:

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Digitally signed by MALATESH K C

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Location: HIGH COURT OF KARNATAKA

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THIMMEGOWDA, S/O HATTIMAYEGOWDA, AGED ABOUT 65 YEARS, R/AT KONNAPURA VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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(BY SRI. G.M. ANANDA, ADVOCATE)

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…APPELLANT

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AND:

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SADASHIVAMURTHY, S/O PUTTANANJAPPAA, AGED ABOUT 69 YEARS R/T KAREBEEDI, HALAGURU VILLAGE AND HOBLI,

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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…RESPONDENT

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(BY SRI. SUNIL S. RAO, ADVOCATE)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2022 PASSED IN RA.No.8/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.11.2018 PASSED IN OS No.292/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI DISMISSING THE SUIT AND REMANDING BACK THE MATTER TO TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 15/2023

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BETWEEN:

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THIMMEGOWDA, S/O HATTIMAYEGOWDA, AGED ABOUT 65 YEARS, R/AT KONNAPURA VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...APPELLANT

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(BY SRI. G.M. ANANDA, ADVOCATE)

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AND:

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PUTTATHAYAMMA, W/O PAPANNA, AGED ABOUT 85 YEARS, HALAGURU VILLAGE AND HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...RESPONDENT

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(BY SRI. SUNIL S. RAO, ADVOCATE)

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2022 PASSED IN RA.No.13/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 03.01.2019 PASSED IN OS No.316/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI DISMISSING THE SUIT FOR DECLARATION AND REMANDING THE MATTER BACK TO THE MATTER TO TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 16/2023

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BETWEEN:

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THIMMEGOWDA,

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S/O HATTIMAYEGOWDA, AGED ABOUT 65 YEARS, R/AT KONNAPURA VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...APPELLANT

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(BY SRI. G.M. ANANDA, ADVOCATE)

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AND:

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M. BASAVARAJU,

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S/O LATE MARIMADAPPA, AGED ABOUT 73 YEARS, SINCE DEAD REPRESENTED BY

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1(A). H.S. NARMADHAVATHI, W/O LATE M. BASAVARAJU, AGED ABOUT 53 YEARS,R/AT NO. 1857, SOSYTY BEHIND C.P.T ROAD, HALAGUR, MALAVALLI,

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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MANDYA - 571 421.

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...RESPONDENT

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(BY SRI. SUNIL S. RAO, ADVOCATE FOR A1)

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THIS MSA IS FILED UNDER SEC.100 R/W ORDER 43 RULE 1(u) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2022 PASSED IN RA.No.5/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.12.2018 PASSED IN OS No.334/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI THE SUIT FOR DECLARATION AND INJUNCTION AND REMANDING THE MATTER BACK TO THE TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 17/2023

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BETWEEN:

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THIMMEGOWDA, S/O HATTIMAYEGOWDA, AGED ABOUT 65 YEARS, R/AT KONNAPURA VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...APPELLANT

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(BY SRI. G.M. ANANDA, ADVOCATE)

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AND:

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H.N. SREEDHARA, S/O LATE H.N. NARAYANASWAMY, AGED ABOUT 57 YEARS, R/AT NO. 22, 1ST MAIN, 3RD CROSS, RMV EXTENSION, 2ND STAGE, ASWATHNAGARA,

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

BANGALORE - 560 094.

...RESPONDENT

(BY SRI. SUNIL S. RAO, ADVOCATE)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2022 PASSED IN RA.No.12/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.01.2019 PASSED IN OS No.315/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI REMANDING THE MATTER BACK TO THE TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 18/2023

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BETWEEN:

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THIMMEGOWDA, S/O HATTIMAYEGOWDA, AGED ABOUT 65 YEARS, R/AT KONNAPURA VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...APPELLANT

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(BY SRI. G.M. ANANDA, ADVOCATE)

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AND:

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MURALIDHARA, S/O H.V. RAMAIAH, AGED ABOUT 61 YEARS, R/AT NO. 78, 71ST CROSS, 5TH BLOCK, RAJAJINAGAR, BENGALURU - 560 010.

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...RESPONDENT

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(BY SRI. SUNIL S. RAO, ADVOCATE)

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2022 PASSED IN RA.No.11/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.12.2018 PASSED IN OS No.300/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI REMANDING THE MATTER BACK TO THE TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 19/2023

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BETWEEN:

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THIMMEGOWDA,

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S/O HATTIMAYEGOWDA, AGED ABOUT 65 YEARS, R/AT KONNAPURA, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...APPELLANT

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(BY SRI. G.M. ANANDA, ADVOCATE)

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AND:

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SHIVANNA, S/O SIDDEGOWDA, AGED ABOUT 67 YEARS, R/AT HALAGUR VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...RESPONDENT

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(BY SRI. SUNIL S. RAO, ADVOCATE)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2022 PASSED IN RA.No.6/2019 ON THE FILE OF THE SENIOR CIVIL

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.12.2018 PASSED IN OS No.350/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI DISMISSING THE SUIT FOR DECLARATION NAD INJUNCTION. REMANDING THE MATTER BACK TO THE TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 21/2023

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BETWEEN:

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THIMMEGOWDA, S/O HATTIMAYEGOWDA, AGED ABOUT 65 YEARS, R/AT KONNAPURA VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...APPELLANT

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(BY SRI. G.M. ANANDA, ADVOCATE)

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AND:

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SOWBHAGYAMMA @ SHOWBHAGYAMMA, W/O VIRUPAKSHAPPA, AGED ABOUT 64 YEARS, R/AT MUTHATHI ROAD, HALAGURU VILLAGE AND HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430, REPRESENTED BY GPA HOLDER VIRUPAKSHAPPA, S/O SIDDALINGAPPA, HALAGURU VILLAGE AND HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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...RESPONDENT

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(BY SRI. SUNIL S. RAO, ADVOCATE)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC

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8 - NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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AGAINST THE JUDGMENT AND DECREE DATED 31.10.2022 PASSED IN RA.No.07/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.11.2018 PASSED IN OS No.294/2012 ON THE FILE OF THE IST ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION. REMANDING THE MATTER BACK TO THE TRIAL COURT FOR FRESH DISPOSAL.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.G.M.Ananda, learned counsel for the appellant and Sri.Sunil S. Rao, learned counsel for the respondent.

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Defendant in O.S.Nos.292/2012, 316/2012, 334/2012, 315/2012, 300/2012, 350/2012 and 294/20120 in all these suits before the Trial Court are the appellants herein.

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For the sake of clarity and convenience, the suit numbers and rank of the parties are tabulated hereunder:

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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O.S.	Trial Cou	rt	First Appellat	e Court	Th	is Court
No.	Plaintiff	De- fendant	Appellant	Res- pondent	,Appellant	Respondent
292/ 2010	Sadashiva- Murthy	Thimme -gowda	Sadashiva- murthy	Thimme -gowda	Thimme- gowda	Sadashiva- murthy
316/ 2012	Puttathaymma	- do -	Puttathaymma	- do -	- do -	Puttathaymma
334/ 2012	M.Basavaraju	- do -	M.Basavaraju	- do -	- do -	M.Basavaraju
315/ 2012	H.N. Shreedhara	- do -	H.N. Shreedhara	- do -	- do -	H.N. Shreedhara
300/ 2012	Muralidhara	- do -	Muralidhara	- do -	- do -	Muralidhara
350/ 2012	Shivanna	- do -	Shivanna	- do -	- do -	Shivanna
294/ 2012	Showbhagyamma	- do -	Sowbhagyamma	- do -	- do -	Sowbhagyamma

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4. Parties are referred to as plaintiff and defendant

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for the sake of convenience as per their original ranking before the Trial Court.

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Plaintiff in each of these suits filed suit for declaration and injunction against the appellant herein who is the common defendant in all these suits.

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Suits on contest came to be dismissed. Each of

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the plaintiff filed appeals before the Court as referred to supra.

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10 - NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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7. Learned Judge in the First Appellate Court after

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reappreciating the material on record, noted that the Trial Court grossly erred in dismissing the suits of the plaintiff and also took into consideration, the additional evidence placed on record by the plaintiffs by filing an application under Order XLI Rule 27 of CPC to set aside the judgment and decree passed by the Trial Court and remitted the matter to the Trial Court for fresh disposal in accordance with law.

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8. Operative portion of order of the First Appellate Court reads as under:

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“Appeal filed by the appellant under Order 41 Rule 1 of CPC, is hereby allowed.

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IA No.I filed by the appellant/plaintiff under Order 41 Rule 27 R/w Section 151 is hereby allowed.

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I.A.No.IV filed by the appellant/plaintiff under Order 26 Rule 9 R/w Section 151 of CPC is hereby allowed.

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Consequently, the judgment and decree passed by the I Addl. Civil Judge and JMFC, Malavalli, in O.S.No.292/2012, dated 30-11-2018, is hereby set aside.

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The matter is remanded back to the trial court for fresh disposal.

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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The appellant/plaintiff is hereby permitted to adduce additional evidence and produce the documents as sought in the IA No.1, subject to admissibility and proof.

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The ADLR, Malavalli is hereby appointed as court commissioner to measure the suit schedule property and property of defendant and submit the detailed report with sketch.

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The commissioner fee is tentatively fixed at Rs.2500/-.

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The parties are at liberty to submit their Memo of instructions if any before the trial court.

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The appellant and the respondent shall appear before the trial court on 02-12-2022, without waiting for further notice from the trial court.

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The parties are hereby directed to cooperate with the court for expeditious disposal of the case.

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Under the facts and circumstances of the case, there is no order as to costs.

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Draw decree accordingly.

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Send the copy of the judgment to the Trial Court along with the TCR.”

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Being aggrieved by the same, common defendant in all those suits has filed appeals before this Court as referred to supra.

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Sri.G.M.Ananda, learned counsel for the appellant in each of these appeals, reiterating the grounds

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12 - NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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urged in the appeal memorandum vehemently contended that when learned Trial Judge has taken into consideration all relevant aspects of the matter and found that defendant being the son of Hattimayegowda had claimed interest over the suit property as a owner in Sy.No.39/1A to the extent of 1 acre 38 ½ guntas. Therefore, claim made by the plaintiff is incorrect and has thus rightly dismissed the suit by the Trial Court which has been lightly brushed aside by the learned Judge in the First Appellate Court in a mechanical manner resulting in miscarriage of justice and sought for allowing the appeals.

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Per contra, Sri.Sunil S. Rao, learned counsel for the respondents/plaintiffs in each of these appeals, supported the impugned judgment by contending that, when there is a serious dispute as to the very existence and identity of the property, the Trial Court ought not to have dismissed the suit. Same is set right by the learned Judge in the First Appellate Court by appointing Assistant Director of Land Revenue as a Court Commissioner to visit

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13 - NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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the spot for identifying the properties belonging to the plaintiffs and defendant. Therefore, there is no legal or factual error in order of First Appellate Court and thus sought for dismissal of the appeals.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that each of the plaintiffs are claiming their right in respect of the suit properties by virtue of a registered sale deed.

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Whereas the defendant claims that he is the owner of the suit property in each of these suits by virtue of the partition that got effected about 30 years earlier and defendant being the son of Hattimayegowda, who had admittedly right over the suit property from the time immemorial and documents filed before the Trial Court which were marked as ‘D’ series documents would sufficiently establish that at an undisputed point of time,

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14 - NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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father of the defendant was treated as ‘Karda Hattimayegowda’ which shows that he was the owner of the property. Defendant being the son of Hattimayegowda being not in dispute, he is the owner of the suit properties to the extent of 1 acre 37 ½ guntas in Sy.No.39/1, 39/1A, 39/1B of Halaguru Village. Therefore, suit has to be dismissed.

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Learned Trial Judge based on the material evidence on record noted that Exs.D.1 to D.45 have got presumptive value and same is not rebutted by the plaintiff. The said finding recorded by the learned Trial Judge is thus incorrect inasmuch as no such presumption is available under the law.

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Further, when there is a dispute as to the title over the suit property and suit is one for declaration and there is also dispute as to the very identity of the property, the proper course would always be to appoint a Court Commissioner for local inspection as is contemplated under Order XXVI Rule 9 of CPC.

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15 - NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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In the case on hand, no such attempt was made by the parties before the Trial Court. Therefore, learned Judge in the First Appellate Court was justified in accepting the additional evidence to be placed on record by the plaintiff and also justified in appointing Assistant Director of Land Revenue as a Court Commissioner for the purpose of measuring the land.

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In the considered opinion of this Court, the approach of the First Appellate Court is thus justified. However, one observation needs to be made while adjudicating the matter afresh in accordance with law before the Trial Court is that the admission made by the parties should not be allowed to be withdrawn.

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The property of the defendant if it is as per the partition claimed by him would be identified if a Court Commissioner is appointed. Thereafter, parties will have clarity not only with regard to the identity and existence of the property; but also the respective rights over the suit property.

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16 - NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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When the plaintiff has clearly stated that defendant is a stranger and suit is one for declaration, defence being claim of the ownership over the suit property by the defendant and not as a stranger, fresh enquiry with regard to respective rights is thus necessary.

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Therefore, in view of the foregoing discussions, following:

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ORDER

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i. Appeals stand disposed of.

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ii. While maintaining the order of remand passed by the First Appellate Court while adjudicating the suit afresh in accordance with law, the Trial Court is hereby directed not to allow the parties to withdraw the admissions which are already on record.

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iii. In respect of additional documents, if any, to be relied upon by the plaintiffs, suitable opportunity is to be granted to the defendant

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NC: 2024:KHC:38977 MSA No. 20 of 2023 C/W MSA No. 15 of 2023 MSA No. 16 of 2023 AND 4 OTHERS

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to meet the additional evidence and if necessary, to place additional evidence on record by the defendant as well.

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iv. Parties shall appear before the Trial Court without further notice on 14.10.2024 and thereafter, Trial Court shall proceed with the case in accordance with law.

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 56/CT: BHK

Thimmegowda v. Sadashivamurthy

Case brief

What is this about?

What did the court decide?

Thimmegowda v. Sadashivamurthy

Case brief

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