Allowed

Sri Gurushanthappa v. Sri Karibasappa

Karnataka HC4 Sept 2024MSA/72/2022

Case brief

AI extract

What is this about?

Defendants appealed against the first appellate court's order remitting a permanent injunction suit for fresh disposal with a fresh Court Commissioner. Holding the existing Commissioner report (Ex.C6) was ignored without objections from plaintiffs, the High Court set aside that order and remitted the matter to the first appellate court for decision on merits under Order 41 Rule 24 CPC.

What did the court decide?

Appeal allowed; impugned R.A.No.44/2019 order dated 08.06.2022 set aside; matter remitted to first appellate court for fresh disposal.

Sri Gurushanthappa Vs Sri Karibasappa — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^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. 72 OF 2022

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BETWEEN:

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SRI. GURUSHANTHAPPA S/O THADAPATHRE SIDDAPPA, AGED ABOUT 57 YEARS,

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SRI. RAMAPPA S/O THADAPATHRE SIDDAPPA, AGED ABOUT 59 YEARS,

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SMT. PARVATHAMMA S/O LATE. GOWDRA SIDDAPPA, AGED ABOUT 79 YEARS,

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SMT. RADHAMMA W/O LATE. BASAVARAJAPPA AGED ABOUT 59 YEARS,

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Digitally signed by VEDAVATHI A K Location: High Court of Karnataka

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SRI. KRISHNAMURTHY S/O LATE. GOWDRA SIDDAPPA, AGED ABOUT 57 YERS,

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SMT. YASHODAMMA D/O LATE GOWDRA SIDDAPPA, AGED ABOUT 55 YEARS, R/O MADAKERE VILLAGE, MADADAKERE HOBLI, HOSADURGA TALUK - 577 527.

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SMT. INDRAMMA W/O NAGARAJA D M, ADVOCATE, D/O LATE GOWDRA SIDDAPPA, AGED ABOUT 53 YEARS, RESIDENT OF HIRIYUR TOWN, CHITRADURGA DISTRICT- 577 527.

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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SMT. GAYATHRAMMA W/O G S LAKKAPPA, D/O LATE GOWDRA SIDDAPPA, AGED ABOUT 51 YEARS, TEACHER, R/O NEAR P G SCHOOL, HOSADURGA TOWN, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 527.

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SRI. HALASWAMY S/O LATE GOWDRA SIDDAPPA, AGED ABOUT 49 YEARS,

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APPELLANT NO.1 TO 5 AND 9 ARE RESIDING OF RAMAJJANAHALLY VILLAGE, MADADAKERE HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT- 577 527.

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…APPELLANTS

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(BY SRI. B. M. SIDDAPPA, ADVOCATE (VC) ) AND:

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SRI. KARIBASAPPA S/O GURUSIDDAPPA, AGED ABOUT 62 YEARS,

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SMT. PARVATHAMMA W/O LATE. SHANKARAPPA, AGED ABOUT 53 YEARS,

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BOTH ARE AGRICULTURISTS, R/O RAMAJJANAHALLY VILLAGE, MADADAKERE HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 527.

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…RESPONDENTS

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(BY SRI. A.C. BALARAJ, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) R/W SECTION 104 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.06.2022 PASSED IN RA.NO.44/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.10.2019 PASSED IN OS.NO.296/2011 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, HOSADURGA. REMANDING BACK THE MATTER TO THE TRAIL COURT.

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Though the matter is listed for admission matter is taken up for final disposal with consent of the parties.

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Heard Sri.B.M.Siddappa, learned counsel for appellants and Sri.A.C.Balaraj, learned counsel for respondent No.2. Respondent No.2 is served and unrepresented.

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The defendants filed this appeal challenging the order passed in R.A.No.44/2019 by the Senior Civil Judge and JMFC, Hosadurga, whereby the learned judge in the first appellate court set aside the judgment and decree passed in O.S.No.296/2011 by the Addl. Civil Judge and Judicial Magistrate first class, Hosadurga, and to remit the matter back to the trial court for fresh disposal in accordance with law.

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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Brief facts of the case which are utmost necessary

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for disposal of the appeal are as under:

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A suit came to be filed by the respondents herein in O.S.No.296/2011 for the permanent injunction in respect of the immovable property which is land in Sy.No.73/3A measuring 4 acres situated at Ramajjanahalli village, Madadakere Hobli, Hosadurga Taluk, Chitradurga district and land in respect of Schedule 'B' to the suit property is to the extent of 1 acre 3 guntas of 'A' schedule property. The suit on contest, came to be dismissed against which plaintiffs filed an appeal before the first appellate court in R.A.No.44/2019.

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Learned judge in the first appellate court ignoring the fact that there was already a Commissioner Report marked at Ex.C6, ignoring this report, allowed the appeal with a direction to appoint a fresh commissioner and also allowed the appointment of fresh Court Commissioner and also allowed the application filed by the plaintiffs to amend

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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the plaint. The operative portion of the first appellate

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court reads as under;-

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" : O R D E R :

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The appeal is filed by the appellants/plaintiffs U/o. XLI rule 1 of CPC is hereby allowed.

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Consequently, the judgment and decree passed by the Addl. Civil Judge & JMFC., Hosadurga in O.S.No.296/2011 on28/10/2019 is hereby set aside.

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IA.6 an application U/o 26 rule 9 of CPC filed by appellant No.2/plaintiff No.2 is hereby allowed.

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IA.7 an application U/o 6 rule 17 of CPC filed by appellant No.2/plaintiff No.2 is hereby allowed with cost of Rs.5,000/paybale to defendants.

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Matter is remanded back to the trial Court. Appellant is permitted to amend the plaint before the trial Court. Further trial Court is directed to appoint DDLR as Court commissioner to know the encroachment. Further, trial court is directed to permit the both parties to lead evidence and to decide afresh. Further both parties are hereby directed to appear before the

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6 - NC: 2024:KHC:36133 MSA No. 72 of 2022

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trial court without taking any notice on 11/07/2022.

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Appellant is directed to pay cost to respondent before trial Court. Draw decree accordingly."

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Being aggrieved with the same, the defendants

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are before this court and this appeal.

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Learned counsel for the appellant

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Sri.B.M.Siddappa, reiterated the grounds urged in the appeal memorandum contended that the approach of the first appellate court in appointing fresh Court Commissioner is totally against the material evidence already available on record resulting in miscarriage of the justice and sought for allowing the appeal.

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Per contra, Sri.A.C.Balaraj, learned counsel for

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the contesting respondent-plaintiff supports the impugned judgment.

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Having heard the parties in detail, this court

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perused the material on record meticulously. On such

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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perusal of the materials on record, it is crystal clear in the trial court itself, a Court Commissioner was appointed and Court Commissioner had already visited the suit schedule property. Based on the material evidence placed on the record by the parties, measured the lands and also given a clear report with a sketch. The same is ignored by the learned judge in the first appellate court while passing the impugned order and directed a fresh Commissioner to be appointed.

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Unless there is a clear and categorical contest by the parties, who are interested in questioning the Commissioner's report, the first appellate court ought to have, ventured to appoint a fresh Court Commissioner. It is pertinent to note that the plaintiffs did not chose to file any objections to the Commissioner's report, marked at Ex.P.C6. The learned judge in the first appellate court ignoring the same has made a tangential observation that the survey was conducted before the land was poded. It is not the case of parties that the property was poded

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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either during the pendency of the suit or during the pendency of the appeal.

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Under such circumstances, the very reasoning assigned by the first appellate court for appointing the fresh Court Commissioner and remitting the matter back to the trial court for fresh disposal in accordance with law is suffering from legal infirmity warranting the discretionary powers vested in this court under Order 43 Rule 1 of CPC to be exercised in favour of the appellant herein.

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Further, if the plaint is amended, the first appellate court in the court of records had the mechanism of recording the evidence, could have decided the case by itself by resorting to the power vested in the first appellate court under Order 41 Rule 24 CPC. Accordingly, this court is of the considered opinion that the case is made out by

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the appellants to set aside the order and remit the matter to the first appellate court itself to decide the matter based on the material evidence on record and additional

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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evidence, if any, to be placed in respect of the amended pleadings to the parties and to dispose of the appeal in a time bound manner.

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Accordingly following order;

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ORDER

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(i) This appeal is allowed .

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(ii) Impugned order in R.A.No.44/2019 dated

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08.06.2022 passed by the Senior Civil Judge and JMFC, Hosadurga, is hereby set aside.

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(iii) The matter is remitted to the first appellate

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court for fresh disposal in accordance with law, with the

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available materials and after affording the necessary opportunities for the parties in respect of amendment to

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the plaint and after raising additional issues, if any, on account of the amendment to the pleadings in accordance with law.

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NC: 2024:KHC:36133 MSA No. 72 of 2022

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(iv) The parties shall appear before the first

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appellate court without further notice on 26.9.2024.

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Sd/(V SRISHANANDA) JUDGE

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AKV List No.: 1 Sl No.: 39 CT:SK

Sri Gurushanthappa v. Sri Karibasappa

Case brief

What is this about?

What did the court decide?

Sri Gurushanthappa v. Sri Karibasappa

Case brief

What is this about?

What did the court decide?

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