Disposed¶47

G Shivalingaiah v. v K Thejaswini

Karnataka HC11 Mar 2025MSA/92/2023

Case brief

AI extract

What is this about?

Miscellaneous Second Appeal; Order 43 Rule 1(u) r/w Section 100 CPC; Order XLI Rule 23-A CPC remand; amendment application attained finality; scope of first appellate court; relief of possession; survey number amendment I.A.No.12; kharab land encroachment; damages Rs.75,000; permanent injunction; Maddur; Mandya; set aside appellate judgment and restore Trial Court order; decide appeal on merits.

What did the court decide?

Impugned judgment and decree in R.A.No.14/2021 dated 28.03.2023 set aside and the order of the Trial Court restored; Appellate Court directed to decide the appeal on its merits; parties at liberty to raise all grounds/objections/cross objections before the Appellate Court; all I.As. in the appeal stand closed. ¶47

G Shivalingaiah Vs v K Thejaswini — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the first Appellate Court acted contrary to law in remanding the suit for retrial on the ground that the Trial Court had wrongly rejected I.A.No.12 (amendment seeking addition of the relief of possession), when the plaintiff had not questioned that order and it had attained finality, instead of deciding the appeal on the merits of the judgment and decree.

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Court's answer

The Appellate Court's exercise of going into the legality of the order passed in I.A.No.12 - which the plaintiff, though afforded the opportunity, never chose to question and which had attained finality - instead of looking at the legality of the judgment and decree, is contrary to law.

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Ratio / Principle

The Appellate Court ought not to have gone into the I.A.No.12 aspect; it ought to have looked at the merits of the judgment and decree and passed an order on that basis.

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Detailed headnote1 paragraphs

High Court of Karnataka at Bengaluru (Lalitha Kanneganti J.), MSA No. 92 of 2023, decided 11.03.2025 - Second appeal by the defendant under Order 43 Rule 1(u) r/w Section 100 CPC against the first Appellate Court's judgment and decree dated 28.03.2023 in R.A.No.14/2021, whereby the Appellate Court set aside the Trial Court's decree dated 20.01.2021 in O.S.No.86/2016 (suit by plaintiff for declaration, damages of Rs.75,000/- and permanent injunction alleging encroachment of suit schedule 'B' property) and remanded the matter under Order XLI Rule 23-A CPC for retrial, on the ground that the Trial Court had wrongly rejected the plaintiff's amendment application I.A.No.12 seeking addition of a relief of possession. Held: since the plaintiff never questioned the Trial Court's order in I.A.No.12 and it had attained finality, the Appellate Court ought not to have examined the legality of that order; such remand is contrary to law, and the Appellate Court ought to have decided the appeal on the merits of the judgment and decree. Disposition: impugned appellate judgment set aside, Trial Court's order restored, Appellate Court to decide the appeal on merits; parties free to raise all grounds/objections/cross objections; all I.As. in the appeal closed.

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NC: 2025:KHC:10249 MSA No. 92 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS SECOND APPEAL NO. 92 OF 2023

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(RO)

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BETWEEN:

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G.SHIVALINGAIAH S/O LATE NINGAIAH AGED ABOUT 68 YEARS, R/AT NO 665, 3^RD CROSS, ARKESHWARANAGAR, GUTHALU POST, MANDYA CITY - 571 403

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…APPELLANT

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(BY SRI. K.L. SREENIVAS, ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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V.K.THEJASWINI D/O V.C.KARADIGOWDA AGED ABOUT 51 YEARS R/O THYLOOR VILLAGE, ATHGUR HOBLI, MADDUR TALUK MANDYA DISTRICT - 571 428

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…RESPONDENT

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(BY SRI. K.K.VASANTH, ADVOCATE)

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THIS MSA FILED UNDER ORDER 43 RULE 1(U) R/W SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.03.2023 PASSED IN RA NO.14/2021 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MADDUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 20.01.2021 PASSED IN OS NO.86/2016 ON THE FILE OF IV ADDITIONAL CIVIL JUDGE AND JMFC AT MADDUR AND THE MATTER IS REMANDED TO THE LEARNED TRAIL COURT UNDER ORDER XLI RULE 23-A OF CPC FOR RETRIAL AND DISPOSAL AFRESH IN ACCORDANCE WITH LAW BY READMITTING THE SUIT UNDER ITS ORIGINAL NUMBER IN THE REGISTER OF CIVIL SUITS.

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NC: 2025:KHC:10249 MSA No. 92 of 2023

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

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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The present appeal is filed aggrieved by the judgment and decree passed in R.A.No.14/2021 dated 28.03.2023 by the Addl. Senior Civil Judge and JMFC, Maddur whereby, the Appellate Court had set aside the judgment and decree passed in O.S.No.86/2016 dated 20.01.2021 by the IV Addl. Civil Judge and JMFC at Maddur and remanded the matter for fresh consideration.

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The brief facts of the case are that the plaintiff had filed the suit for relief of declaration. The plaintiff is the absolute owner of the suit schedule ‘A’ property and for perpetual injunction to direct the defendant to pay damages of Rs.75,000/- together with interest at 5% per annum and for such other reliefs. It is the case of the plaintiff that the suit schedule ‘A’ property was purchased by her grandfather in the year 1972. Since then he was in possession and enjoyment of the property. After his death, father of the plaintiff was in possession and enjoyment of the same and subsequent to

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3 - NC: 2025:KHC:10249 MSA No. 92 of 2023

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death of her father, the plaintiff has been in possession and enjoyment of the property. The defendant had purchased 45 guntas on southern side of the same survey number from the same owner during 1985. In the said survey number there was about 04 guntas kharab land reserved for road. But, the defendant in collusion with the revenue officials got mutated the said 04 guntas of kharab into his name including the same in the 45 guntas purchased by him and created revenue documents for 50 guntas. It is his case that the encroached portion is shown as suit schedule ‘B’ property and in the said encroached portion, the defendant had dug and removed the fertile soil to construct poly house/green house. Thereby, the defendant has caused damage to the plaintiff and accordingly, she had come up with the suit. The defendant had filed the written statement and denied the case of the plaintiff. He had admitted as far as the ownership of the plaintiff with regard to suit schedule ‘A’ property, but as far as the suit schedule ‘B’ property is concerned, he has relied on the same. During the pendency of the suit, the plaintiff had filed I.A.No.12 seeking to amend the prayer by deleting the prayer portion (B) and it is prayed to add in its place as “Consequent upon such

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NC: 2025:KHC:10249 MSA No. 92 of 2023

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declaration, to grant the decree of possession directing the defendant to handover the vacant possession of suit schedule ‘B’ property to the plaintiff” and also to amend Survey No.40/1A in suit schedule ‘A’ property as Survey No.40/1A2 and the defendant had filed his objections. The Trial Court had partly allowed I.A.No.12 permitting to amend the Survey No.40/1A in suit schedule ‘A’ property as Survey No.40/1A2, had rejected the prayer to delete prayer portion (B) and to add the relief of decree of possession. The plaintiff had not questioned the said order passed by the Trial Court in I.A.No.12. Thereafter, the Trial Court after a full-fledged trial had held that the plaintiff had proved the encroachment by the defendant over the suit schedule property of the plaintiff. Then, when it comes to the damages, plaintiff is entitled for the damages worth Rs.75,000/- and also for the relief of permanent injunction against the defendant and accordingly, the Trial Court had passed the judgment by decreeing the suit. Aggrieved thereby, the defendant had preferred R.A. No.14/2021. The Appellate Court had remanded the matter. The reasons for remanding the matter by the Appellate Court is that the Trial Court had wrongly rejected I.A.No.12 filed by the

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plaintiff seeking to include the relief of possession by way of amendment, which was necessary for the purpose of determining the real questions in controversy between the parties. The suit of the plaintiff without seeking the relief of possession is not maintainable, it is not proper to dismiss the suit as her application for amendment to include such a relief has been erroneously rejected by the learned Trial Court Judge. It is also observed that without permitting such an amendment, the Trial Court could not have proceeded to pass the impugned judgment and decree. Therefore, the circumstances and the principles of justice mandate that the plaintiff should be given an opportunity to include the relief of possession, which can be done only by remanding the matter for retrial as such inclusion of the relief of possession, would entail framing of appropriate issues and adducing the additional evidence and accordingly, remanded the matter by setting aside the judgment and decree passed by the Trial Court. Aggrieved thereby, the defendant is before this Court by filing the present appeal.

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Learned counsel appearing for the appellant/ defendant submits that when the finding with regard to I.A.No.12 has attained finality and the same was not

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NC: 2025:KHC:10249 MSA No. 92 of 2023

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questioned by the plaintiff, the observation of the Appellate Court that the Trial Court ought to have allowed the application and ought to have allowed the amendment is contrary to law and beyond the scope of the appeal, the Trial Court has gone beyond the jurisdiction conferred and the Appellate Court had remanded the matter. It is submitted that the reasons given for remanding the matter are not well considered and the order needs to be set aside.

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Learned counsel appearing for the respondent/ plaintiff submits that the Trial Court had rightly remanded the matter looking at the substantial interest of the parties and no prejudice will be caused to the appellant, if the appeal is remanded and an order is passed on the merits of it. He submits that no interference is called for with the impugned order passed by the Appellate Court.

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Having heard the learned counsels on either side,

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perused the material on record. Initially, the suit was filed for declaration and for damages. According to plaintiff, she is the owner of the suit schedule ‘A’ property and suit schedule ‘B’ property is the one which is encroached by the defendant.

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NC: 2025:KHC:10249 MSA No. 92 of 2023

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Then, I.A.No.12 is filed seeking to amend the prayer i.e., seeking the recovery of possession and also to amend the survey number. The Trial Court had partly allowed the same by permitting him to amend the survey number, but when it comes to the recovery of possession, that was dismissed by the Trial Court. For the best reasons known to the plaintiff, the plaintiff had not questioned the said order and the order passed by the Trial Court in I.A.No.12 had attained finality. Thereafter, the Trial Court had passed the judgment and decree whereby the suit is decreed as prayed for by the plaintiff. When the defendant had carried the matter in appeal, the Appellate Court ought to have looked at the legality or otherwise of the judgment and decree. Instead of that the Appellate Court had gone to the aspect whether the order passed in I.A.No.12 is legal or not and the Appellate Court has come to the conclusion that unless and until I.A. is allowed, injustice will be caused to the plaintiff and at that stage, remanded the matter. In the considered opinion of this Court, such exercise done by the Appellate Court is contrary to law. When the plaintiff had an opportunity to question the order passed in I.A.No.12, when he has not chosen to question the same, the Appellate Court ought

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NC: 2025:KHC:10249 MSA No. 92 of 2023

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not to have gone into the aspect and the Appellate Court ought to have looked at the merits of the judgment and decree and ought to have passed an order. In that view of the matter, this Court deems it appropriate to pass the following:

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ORDER

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i. The order impugned in R.A.No.14/2021 dated 28.03.2023 by the Addl. Senior Civil Judge and

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JMFC, Maddur is set aside and the order of the Trial Court is restored.

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ii. The Appellate Court shall decide the appeal on the merits of it.

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iii. The parties are at liberty to raise all the grounds/ objections/ cross objections if any before the Appellate Court.

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iv. The appeal is disposed of .

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v. All I.As., in the appeal shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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BN/List No.: 3 Sl No.: 21

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment and decree dated 28.03.2023 in R.A.No.14/2021 whereby the first Appellate Court allowed the defendant's appeal, set aside the Trial Court's judgment and decree dated 20.01.2021 in O.S.No.86/2016, and remanded the matter to the Trial Court under Order XLI Rule 23-A CPC for retrial.¶23
Addl. Senior Civil Judge and JMFC, Maddur · 28.03.2023
Prior proceeding
Plaintiff filed O.S.No.86/2016 in the IV Addl. Civil Judge and JMFC Court, Maddur, seeking declaration of ownership of suit schedule 'A' property, perpetual injunction, and damages of Rs.75,000/- with interest at 5% per annum, alleging the defendant encroached suit schedule 'B' property (including mutated kharab land) and excavated fertile soil.¶24
Prior proceeding
During the suit, plaintiff filed I.A.No.12 to amend the prayer (delete prayer portion (B), add relief of decree of possession) and to amend Survey No.40/1A to Survey No.40/1A2; the Trial Court partly allowed it - survey-number amendment permitted, addition of possession relief rejected.¶29
Prior proceeding
The plaintiff did not challenge the Trial Court's order in I.A.No.12, and that order attained finality.¶29
Prior proceeding
After a full-fledged trial, the Trial Court (judgment and decree dated 20.01.2021) found the plaintiff proved the encroachment, held her entitled to damages worth Rs.75,000/- and permanent injunction, and decreed the suit.¶29
Prior proceeding
Aggrieved by the Trial Court's decree, the defendant preferred R.A.No.14/2021 before the Addl. Senior Civil Judge and JMFC, Maddur.¶29
Prior proceeding
The Appellate Court reasoned that the Trial Court had wrongly rejected I.A.No.12 seeking inclusion of the relief of possession, that the suit without such relief raised questions necessary for determining the real controversy, and that including the relief would entail framing of appropriate issues and adducing additional evidence; it therefore set aside the Trial Court's judgment and decree and remanded the matter for retrial.¶31

G Shivalingaiah v. v K Thejaswini

Case brief

What is this about?

What did the court decide?

G Shivalingaiah v. v K Thejaswini

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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