Defendants appealed a first appellate court's remand of a dismissed encroachment suit for survey of the properties per sale deed sketches. The High Court found no legal infirmity in the remand order under the scope of Order XLIII CPC and declined admission, dismissing the second appeal.
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NC: 2024:KHC:30510 MSA No. 50 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO.50 OF 2022 (RO)
BETWEEN:
…APPELLANTS
Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA
(BY SRI. RITHIK Y.M, ADVOCATE FOR SRI. SUYOG HERELE E, ADVOCATE)
AND:
MRS. FIONA NONORNHA, WIFE OF SYLVESTER NORONHA, AGED 62 YEARS, FLAT NO.1001, K-2 APARTMENT, BEHIND SANJIVINI FALNIR, MANGALURU - 575 001.
…RESPONDENT
(VIDE ORDER DATED 12.07.2024, NOTICE TO RESPONDENT IS HELD SUFFICIENT)
NC: 2024:KHC:30510 MSA No. 50 of 2022
THIS MSA IS FILED UNDER ORDER 43 RULE 1 (U) OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.04.2022 PASSED IN RA.NO.14/2018 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 27.02.2018 PASSED IN OS.NO.61/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K, REMAND THE MATTER BACK TO THE TRIAL COURT FOR FRESH CONSIDERATION OF THE PRAYERS OF THE PLAINTIFF IN ACCORDANCE WITH LAW.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.Rithik Y. M., learned counsel appearing on
behalf of Sri.Suyog Herele, learned counsel for the appellants.
NC: 2024:KHC:30510 MSA No. 50 of 2022
reads as under:
“The appeal filed Under Section 96 and Order 41 Rule 1 of Civil Procedure Code is partly allowed.
The judgment and decree dated 27.02.2018 passed in O.S.No.61/2013 by the Court of Principal Senior Civil Judge and CJM, Mangaluru, D.K. is set aside to the extent of dismissing the suit of the plaintiff and the matter is remanded bank to the trial Court for fresh consideration of the prayers of the plaintiff in accordance with law, after getting the lands in question surveyed through the Court.
Parties are directed to appear before the trial Court on 02.06.2022 at 11.00 a.m. in person or through their counsel without fail, to take notice of the further proceedings in O.S.No.61/2013.
As the defendants have not challenged the dismissal of their counter claim by way of appeal or cross-objector to the appeal, the dismissal of the counter claim of the defendants is confirmed.
Draw a decree accordingly.”
necessary for disposal of the appeal are as under:
4.1. A suit came to be filed by the plaintiff in O.S.No.61/2013 for recovery of ‘B’ schedule property alleging that same is encroached by the defendants.
NC: 2024:KHC:30510 MSA No. 50 of 2022
4.2. Plaintiff claims a title to the property based on
the sale deed and sketch that has been annexed with the sale deed.
that the sale deed of the plaintiff and defendants contained the sketch and if the property is measured based on the sketch by a technical expert, the Court can
NC: 2024:KHC:30510 MSA No. 50 of 2022
definitely conclude about the alleged encroachment, which would resolve the dispute among the parties once and for all. Therefore, set aside the judgment of the Trial Court, dismissing the suit of the plaintiff and allowed the appeal and remitted the matter to the Trial Court for fresh disposal as referred to supra.
NC: 2024:KHC:30510 MSA No. 50 of 2022
of the appellants, this Court perused the material on record meticulously.
22. Normally when the Plaintiff fails to prove his/her case then the Court would proceed to dismiss the case. This Court opines that such a course cannot be adopted in this case in the peculiar facts and circumstances of the case. It is because though the Plaintiff has failed to
NC: 2024:KHC:30510 MSA No. 50 of 2022
probabilise the Defendants having encroached upon her property to an extent of 5.35 cents as contended in the plaint, there are prima-facie materials to support such an allegation but actual extent of encroachment is not forthcoming from the record. As already pointed out, the sale deed executed in favour of the Plaintiff and the sale deed executed in favour of predecessor-in-title of the Defendants contain sketches of the portion sold in their favour. The papers available on record go to show that 5 cents of land purchased by Smt. Chandrika Jairam Shetty is located in north west corner of the property purchased by the Plaintiff. The documents available on record indicate that 5 cents of land purchased by Smt. Chandrika Jairam Shetty was bounded on west by Survey No.28. Thereby it becomes clear that there is a boundary line bifurcating lands bearing Survey Nos.27 and 28. In the said circumstances, if the property of the Plaintiff and 5 cents of land purchased by Smt. Chandrika Jairam Shetty are measured with reference to the sketches annexed to their sale deeds then one can locate the properties in question as well as encroachment and its extent. The said work can be done through the Court and with the assistance of a qualified person so that the properties can be measured with the knowledge and in the presence of the parties. This Court opines that such a move is necessary in the case in the interest of justice and for complete adjudication of the dispute. Hence, this Court holds that it is a fit case to remand the matter to the trial court for fresh disposal in accordance with law after getting the lands in question surveyed through the Court. For the foregoing reasons, Point No.1 is answered in the Negative and Point No.2 is answered in the Affirmative.
17. As could be seen from the discussion in the
above paragraph, learned Judge in the First Appellate
NC: 2024:KHC:30510 MSA No. 50 of 2022
Court found that the plaintiff is the owner of the property as per the sale deed but the extent of the property purchased by the plaintiff could not be properly located in the absence of material evidence placed on record. Therefore, remitted the matter to the Trial Court for appointing a Court Commissioner.
19. Accordingly, the following:
ORDER
i. Admission declined.
ii. Appeal is dismissed.
Sd/(V SRISHANANDA) JUDGE
KAV List No.: 1 Sl No.: 36/CT: BHK
1 issue framed by the court
Whether the First Appellate Court could remand the suit for fresh disposal after directing a court-ordered survey of the lands via sketches annexed to rival sale deeds.
2 provisions across 1 enactments
Energy Health Spas Pvt. Ltd.
SKS Netgate Pvt. Ltd.
Avash Builders Pvt. Ltd.
Mrs. Fiona Nonornha
V SRISHANANDA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
