Sri B S Dasa Setty Vs Sri K M Krishne Urs

(BY SRI P CHIDANANDA, ADVOCATE FOR R1, SRI M V VEDACHALA, ADVOCATE FOR R2 & R5 TO R7, SRI S N KUMARASWAMY, ADVOCATE FOR R3, R4 IS SERVED, R6 & R7 ARE MINOR AND REP. BY R5)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 12.7.07 PASSED IN R.A.NO 17/95 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), HUNSUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 22.5.95 PASSED IN OS 221/91 ON THE FILE OF THE MUNSIFF AND JMFC., HUNSUR.

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

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NC: 2025:KHC:19080 RSA No. 2804 of 2007

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HC-KAR

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CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

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This appeal was admitted on 29.06.2009 to consider the following substantial questions of law:-

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"(1) Whether the lower Appellate Court has committed an error in reversing the judgment and decision passed by the trial Court and whether such reasoning while doing so in contrary to the evidence on record, more particularly Exs. P1 to P-7 and Exs. D1 to D4?

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(2) Whether the lower Appellate Court was justified in coming to the conclusion that the defendant has made out a case when no materials are available on record to indicate that the defendant has claimed occupancy rights in respect of the land belonging to the plaintiff and the plaintiff has not been indicated as the land lord?"

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NC: 2025:KHC:19080 RSA No. 2804 of 2007

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HC-KAR

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The plaintiffs' suit for declaration and permanent injunction was decreed by the Trial Court. On an appeal by the defendants, First Appellate Court allowed the appeal and has set aside the judgment and decree passed by the trial Court.

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It is noticed from the records, that the plaintiffs’ claim is based on Ex.P7 the registered sale deed dated 09.03.1965. The said sale deed covers two survey numbers namely Sy.Nos.32 and 33, measuring 1 acre 1 gunta, in all, located in Hanchya village, Taluk Hunsur. However, it is also noticed that on the same date, another sale deed was executed in respect of remaining part of Sy.No.33 and two other survey numbers namely Sy.Nos.31 and 34. The property boundaries have been mentioned in the aforementioned sale deeds. However, the suit is filed in respect of Sy.No.24 on the premise that the property bearing Sy.No.33 is renumbered and the relief is only confined to 4 acres, 37 guntas.

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NC: 2025:KHC:19080 RSA No. 2804 of 2007

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HC-KAR

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The Trial Court had disposed the suit accepting the boundaries shown in the plaint. However, the First Appellate Court has noticed that the boundaries shown in the plaint do not tally with the boundaries shown in the sale deeds referred to above.

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The appeal is filed on the premise that there is no dispute relating to the identity of the property and the First Appellate Court could not have dismissed the suit by allowing the appeal.

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This Court after considering the materials on record and perusing the records has noticed that the documents are not produced to co-relate Sy.No.33 to Sy.No.24 and to co-relate the boundaries mentioned in the sale deed with the boundaries mentioned in the plaint. Under these circumstances, though the First Appellate Court is justified in setting aside the judgment and decree passed by the Trial Court, could not have dismissed the suit in its entirety rejecting the relief of declaration of title and permanent injunction.

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NC: 2025:KHC:19080 RSA No. 2804 of 2007

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HC-KAR

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The First Appellate Court should have given an opportunity for the plaintiffs to file a fresh suit by describing the correct boundaries and producing the documents evidencing the change of survey number.

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Learned counsel for the appellants seeks leave of this Court to file a fresh suit by withdrawing the suit. This Court is of the view that the appellant should be permitted to withdraw the suit with a liberty to file a fresh suit if there is a cause of action.

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It is made clear that in case such suit is filed, the observations made in the judgment and decree passed in the trial Court and the observations made in the First Appellate Court shall not be used as any piece of evidence by both the parties. And if either of the parties file a fresh suit same shall be decided on its merits without being influenced by the judgment and decree of the Trial Court and the First Appellate Court.

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