Smt. Narayanamma W/O Virupakhsha Reddy Vs H Manikya Reddy S/O Venkata Reddy

THIS MSA IS FILED UNDER SECTION 43 RULE 1(U) OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 04.01.2025 PASSED IN RA NO.45/2023 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE AT BALLARI AND CONFIRM THE JUDGMENT AND DECREE DATED 01.09.2023 PASSED IN OS NO.159/2012 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE BALLARI SITTING AT SIRUGUPPA AND THEREBY DISMISS THE SUIT OF THE PLAINTIFF.

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

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NC: 2025:KHC-D:8634 MSA No. 100018 of 2025

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR)

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The appeal is filed by the defendant questioning the order dated 04.01.2025 passed in R.A.No.45/2023 on the file of II Additional District Judge, Ballari, thereby, the judgment and decree dated 01.09.2023 passed in O.S.No.159/2012 on the file of II Additional Senior Civil Judge, Ballari sitting at Siraguppa is set aside and remanded the matter to the Trial Court for fresh consideration.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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The plaintiff has filed a suit for declaration, possession and further consequential reliefs. The suit of the plaintiff came to be dismissed on the reason that the plaintiff has failed to prove his title over the schedule property. The plaintiff has produced certified copy of sale deed but not the registered sale deed itself.

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Against dismissal of the suit, the plaintiff has filed Regular Appeal before the First Appellate Court and the First

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NC: 2025:KHC-D:8634 MSA No. 100018 of 2025

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HC-KAR

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Appellate Court has allowed the appeal by setting aside the judgment and decree passed by the Trial Court and remanded with observations, by appointing Court Commissioner to do certain things. This order is under challenge by the defendant.

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Upon considering the observations made by the First Appellate Court at paragraph No.50 that the plaintiff has not appeared before the trial Court and he has not brought to the knowledge of the Trial Court regarding Court Commissioner fee and taking steps. Further, the plaintiff has not addressed arguments when the matter was posted for judgment before Trial Court, at that time, the application filed by the plaintiff for reopening of the case came to be dismissed. Therefore, there is no proper and specific liberty was given to the plaintiff to contest the suit.

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Furthermore, the plaintiff has produced certified

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copy of the sale deed. As per case of the defendant, the plaintiff has not laid foundation for leading secondary evidence. Whether, foundation was laid or not and according to it, whether secondary evidence is to be

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4 - NC: 2025:KHC-D:8634 MSA No. 100018 of 2025

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HC-KAR

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considered or not is the question for consideration before the Trial Court.

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However, as there are no sufficient

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opportunities given to the plaintiff, the First Appellate Court has remanded the matter to the Trial Court for fresh disposal with certain directions regarding appointment of Court Commissioner. Further, the First Appellate Court has imposed cost of Rs.5,000/- payable by the plaintiff to the defendant since the remand is at the instance of the plaintiff. Therefore, this Court does not find any merit to interfere with the order passed by the First Appellate Court.

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When a comprehensive suit for declaration is filed, technicalities shall not come in the way to adjudicate the claim on substantial cause, especially where suit is filed for declaration. Therefore, in this regard, I do not see any good reason to interfere with the order passed by the First Appellate Court. Hence, the appeal is liable to be dismissed.

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NC: 2025:KHC-D:8634 MSA No. 100018 of 2025

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HC-KAR

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Accordingly, the appeal is dismissed.

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However, in addition to the directions given by

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the First Appellate Court for conducting survey by the Court Commissioner, it is directed the Court Commissioner to conduct survey of the entire land bearing Sy.No.268 situated at Hosahalli village, Siruguppa taluk, Ballari District and also verify in which survey number the canal/halla is flowing.

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Sd/(HANCHATE SANJEEVKUMAR)

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JUDGE

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RKM, SRA CT:BCK LIST NO.: 1 SL NO.: 117

Smt. Narayanamma W/O Virupakhsha Reddy v. H Manikya Reddy S/O Venkata Reddy

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Smt. Narayanamma W/O Virupakhsha Reddy v. H Manikya Reddy S/O Venkata Reddy

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