Second appeal against a first appellate court's remand of a declaration and injunction suit between brothers over 6 guntas each in Survey No.15/1A1. The High Court held that since admitted measurements did not match the partition deed, remand for measurement was correct, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS SECOND APPEAL NO. 41 OF 2020
BETWEEN:
MOHAMMED KHASIM S/O LATE ABDUL GAFOOR SAB AGED ABOUT 62 YEARS R/AT SIRA ROAD PAVAGADA TOWN PAVAGADA TALUK TUMAKURU DISTRICT - 572101
…APPELLANT
(BY SRI. HARISH H V.,ADVOCATE)
AND:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
…RESPONDENTS
NC: 2024:KHC:11095 MSA No. 41 of 2020
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.11.2019 PASSED IN R.A.NO. 23/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PAVAGADA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT DATED 20.02.2017 PASSED IN O.S.NO.61/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, PAVAGADA, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION AND FURTHER THE MATTER IS REMANDED BACK TO THE TRIAL COURT WITH A DIRECTION TO DISPOSE OF THE CASE IN ACCORDANCE WITH LAW.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed aggrieved by the order dated 18.11.2019, passed in R.A. No.23/2017, by the Senior Civil Judge and JMFC, Pavagada, whereby the court below had remanded the matter to the trial court with a direction to reissue the Commissioner warrant to measure the entire extent of Survey No.15/1 and 15/2 in respect of shares of the plaintiff and defendant No.1 without being influenced by the extent mentioned in Exhibit-P1, then only the dispute will be resolved between the parties.
NC: 2024:KHC:11095 MSA No. 41 of 2020
case of the plaintiff that by virtue of the partition deed between the plaintiff and defendant No.1 dated 22.04.1992 they have partitioned the land and they got 6 guntas of land each and ever since then, they have been in peaceful possession and enjoyment of the property. The brother of the plaintiff i.e., defendant no.1 had sold his share to defendant No.2 by way of registered sale deed on 28.02.2002. Thereafter on the strength of the said sale deed on 10.02.2009 when Defendant No.2 has tried to interfere with the suit schedule property and started to lay foundation the suit is filed. It is the case of the plaintiff that the defendant has sold away the property which was not in his possession and beyond the sale deed and basing on the same defendant was interfering with the property. Before the court below defendant no.1 had chosen to be silent and he has not filed his written statement and it was contested by Defendant No.2. It is the case of the defendants that the brothers have got 6 guntas each and the share of defendant no.1 was sold to them.
he has marked Exhibits-P1 to P7. On behalf of Defendant, DW-
NC: 2024:KHC:11095 MSA No. 41 of 2020
Commissioner was examined as CW-1 and on his behalf Exhibits-C1 to C10 were marked. The trial court relying on the partition deed and that the defendant has not disputed the contents of the partition deed had decreed the suit, declaring that the plaintiffs is in the lawful possession and enjoyment of the suit schedule property and restrained the defendants from interfering with the possession of the plaintiffs.
deed of the defendant No.2 initially extent was mentionted by showing North-South 32 feet, but subsequently based on the partition deed the extent is amended as 63 feet. The court below observed that if the plaintiff restricted his claim to an extent of 6 guntas by mentioning East-West more than 100 feet, and North-South 32 feet he may be declared as the owner to that 6 guntas, but Exhibit-P1 is contrary to the extent towards North-Sourth shown as 63 feet instead of 32 feet, if the decree is granted then the plaintiff will relay on the extent mentioned in Exhibit-P1. Under such circumstances, the entire extent of the property of the defendant No.1 includes in the property of the plaintiff, thereby the defendant No.2 who is the purchaser will be put to loss. Similarly, the defendant No.2 shall also restrict his property to an extent North-South 32 feet and East-West more than 100 feet which is actually available. Considering all these the court below has remanded the matter with a direction re-issue the Commissioner warrant to measure the entire extent of Survey No.15/1 and 15/2 in respect of shares of the plaintiff and defendant No.1 without being influenced by the extent mentioned in Exhibit-P1.
NC: 2024:KHC:11095 MSA No. 41 of 2020
perused the entire material on record. Undisputed facts in this case are that a partition is effected between the parties. As per
NC: 2024:KHC:11095 MSA No. 41 of 2020
the partition both the brothers i.e., the plaintiff and defendant No.1 got 6 guntas of land. The first defendant had sold away the property to the second defendant. According to the plaintiff, defendant No.2 is interfering with his possession and according to the learned counsel his property is overlapping with that of defendant No.2 and the court below ought not to have remanded the matter that too with a finding that without there being influenced by the extent mentioned in Exhibit-P1. There are admissions on record by PW-1 that as far as the road and measurements are concerned they have mentioned something which is actually and physically not present. In that case, the property cannot be measured basing on Exhibit-P1. Unless and until the extent of land that is available is measured and then basing on that they are entitled for equal share and the court would be able to decide what is the extent of land and put a quietus to the issue between the parties.
NC: 2024:KHC:11095 MSA No. 41 of 2020
than six months from the date of receipt of the copy of this order.
SD/JUDGE
JJ
List No.: 1 Sl No.: 25
1 issue framed by the court
Whether the first appellate court was justified in remanding the suit for fresh measurement of the suit property instead of deciding on existing record?
1 provisions across 1 enactments
Mohammed Khasim S/O Late Abdul Gafoor Sab
P U Devadas S/O Late P S Ugrappa
Mohammen Althaff S/O Late Abdul Gafoor Sab
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
