Sri. H.E. Nirvanappa vs The City Municipal Council
2022 Latest Caselaw 9005 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
           DATED THIS THE 17TH DAY OF JUNE, 2022
                          BEFORE

          THE HON'BLE MS. JUSTICE JYOTI MULIMANI

       MISCELLANEOUS SECOND APPEAL NO.71 OF 2014

BETWEEN

SRI.H.E.NIRVANAPPA
S/O LATE VEERAPPA @ MARIAPPA
AGED ABOUT 77 YEARS
RESIDING AT K.H.B. COLONY
JYOTHINAGAAR POST
CHIKAMAGALUR-577101.                         ...APPELLANT

(BY SRI K.SACHINDRA KARANTH, ADVOCATE)

AND

1.    THE CITY MUNICIPAL COUNCIL
      CHIKAMAGALUR, REPRESENTED
      MUNICIPAL COMMISSIONER
      CITY MUNICIPALITY
      CHIKAMAGALUR - 577101

2.    MRS GOWRAMMA
      W/O LATE C. M. CHANNABASAPPA
      AGED ABOUT 56 YEARS
      RESIDING AT HOSAMANE
      CHIKAMAGALUR-577101

3.    SRI C. C. NAGARAJ
      S/O LATE C. M. CHANNABASAPPA
      AGED ABOUT 30 YEARS
      R/AT HOSAMANE EXTENSION
      CHIKAMAGLAUR-577101
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4.   SMT.SHOBHA
     D/O LATE C. M. CHANNABASAPPA
     AGED ABOUT 30 YEARS
     RESIDNG AT HOSMANE EXTENSION
     CHIKAMAGALUR-577101

5.   SRI C. C. KIRAN
     S/O LATE C. M. CHANNABASAPPA
     AGED ABOUT 24 YEARS
     RESIDING AT, HOSMANE EXTENSION
     CHIKAMAGALUR-577101

6.   MRS JAYALAKSHMAMMA
     W/O LATE H. M. GIRIJESH
     AGED ABOUT 49 YEARS
     RESIDING AT, KUVEMPU NAGAR
     MURUMANEHALLI ROAD
     CHIKAMAGALUR-577101

7.   SRI BHARATH
     S/O LATE H. M. GIRIJESH
     AGED ABOUT 31 YEARS
     RESIDING AT, KUVEMPU NAGAR
     MURUMANEHALLI ROAD
     CHIKAMAGALUR-577101

8.   SRI H. M. NATARAJ
     S/O LATE MALLAPPA
     AGED ABOUT 57 YEARS
     RESIDING AT
     HOSMANE CIRCLE
     CHIKMAGALUR-577101                 ...RESPONDENTS

(BY SRI.J.N.NAVEEN, ADVOCATE FOR
    SRI.A.NAGARAJAPPA, ADVOCATE FOR R1;
    NOTICE TO R2 TO R7 IS DISPENSED WITH;
    R8 - SERVED)
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      THIS MSA IS FILED UNDER SECTION 54(2) OF THE LAND
ACQUISITION ACT.


      THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:


                              ORDER

Sri.Sachindra Karanth.K., learned counsel for appellant and

Sri.Naveen., learned counsel on behalf of Sri.A.Nagarajappa., for

respondent No.1 have appeared in person.

2. The parties are referred to as per their rankings

before the Trial Court.

3. The brief facts of the case are stated as under:

It is stated that a suit was filed (O.S.No.51/1995) by the

appellant for possession, inter-alia, contending that the Property

bearing No.1179/1175 (Old No.127/914) measuring 105 feet by

33 feet which came to the share of his father in a partition

dated:01.09.1938. Respondents 2 to 8 had been permitted to

reside in the said property. The dimension of the property was

not disputed by the Respondents in the suit. The suit came to be

dismissed. The Appellate Court allowed the appeal

(R.A.No.23/2002) and the respondents were directed to hand

over vacant possession of the property to the Plaintiff within 90

days.

It is averred that in the interregnum, some politicians with

the intent of knocking off the property, attempted to interfere

with the appellant's possession of the property through the City

Municipal Council. The Appellant and Respondents 2 to 8 filed

O.S.No.117/1987 to restrain the Defendants therein the CMC and

the Gundamma Temple and its agents from interfering with their

possession. The Suit was dismissed but the Appeal was allowed.

Against the said Judgment and Decree RSA.No.4/2001 was filed

only by Gundamma Temple and CMC did not prefer any appeal.

The Second Appeal was also dismissed holding that the

Respondents therein were entitled to Order of Injunction. In the

second appeal, it was observed that it was open to the

Respondent No.1 CMC to establish their claim to the property in

accordance with law.

As things stood thus, the appellant filed Execution

No.133/2009 for execution of the Decree in RA No.23/2002,

respondents 2 to 8 to spite the appellant, set up the CMC to file

an Obstruction Petition claiming that they had taken possession

under the Public Premises Act. It is said that not a single

document was produced to show that either any proceedings

were initiated or to show that any procedure was followed or that

the appellant was issued a notice. No material facts were pleaded

by the first Respondent - Obstructer to substantiate its plea of

proceedings under the Public Premises Act.

It is stated that in the Execution Petition in view of the lack

of any material pleadings or evidence and having regard to the

law on the point, the Executing Court dismissed the Obstruction

Petition. However, on Appeal, the Appellate Court allowed the

appeal and remanded the matter to the Trial Court to "frame

appropriate issues and afford an opportunity to the appellant as

well respondent, to lead evidence in support of their respective

cases/claim". It is this order which has been challenged by the

appellant on various grounds as set out in the Memorandum of

Appeal.

4. This court vide order dated:03.02.2015 framed the

following substantial question of law.

"Whether the First Appellate court is justified in remanding the matter with a direction to frame appropriate issues and thereafter to dispose of the suit?"

5. Learned counsel for appellant and respondent No.1

have urged several contentions.

6. Heard, the contentions urged on behalf of appellant

and respondent No.1.

7. The facts have been sufficiently stated.

While addressing argument, learned counsel Sri.Naveen.,

vehemently contended that the Executing Court has only

formulated points for consideration and has not framed issues.

Hence, the Appellate Court is justified in noticing the same and

accordingly an order of remand is made by Appellate Court.

In reply, Sri.Sachindra Karanth., submitted that the

Appellate Court has framed points for consideration and the

points framed would suffice to adjudicate the issue between the

parties. Learned Counsel strenuously urged that there was no

necessity for remand. Accordingly, he submitted that the order of

remand is unsustainable in law.

I have considered the submission made on behalf of

appellant and respondent No.1 with utmost care.

The case really falls within a small compass. The suit was

simple, but as it went on appeal, it has widened out.

The remand order is challenged in the present appeal. The

Appellate Court remitted the matter solely on the ground that no

reasonable opportunity was afforded to the Objector to prove its

claim on account of non-framing of issues.

Suffice it to note that the scheme of Order XIV of the Code

of Civil Procedure, 1908, dealing with Settlement of Issues shows

that an issue arises when a material proposition of fact or law is

affirmed by one party and denied by the other and material

propositions are those propositions of law or fact which a plaintiff

must allege in order to show a right to sue or a defendant must

allege in order to constitute his defense and each material

proposition affirmed by one party and denied by other should

form the subject of a distinct issue.

Let me consider, whether the Executing Court has

ascertained the material propositions on which appellant and

Objector were at variance. In the instant case, both appellant

and Objector have put forth their material propositions. The

order of the Executing Court is furnished in the appeal. I have

perused the same with utmost care. In the background of the

material propositions put forth by the parties the Executing Court

framed points for consideration.

Suffice it to note that both the appellant and the Objector

went to trial fully knowing the rival case and led evidence.

As is well known that where the parties went to trial fully

knowing the rival case and led all the evidence not only in

support of their contentions but in refutation of those of the

other side, it cannot be said that the absence of an issue was

fatal which vitiates proceedings. In the present, the Executing

Court has framed points for consideration and the points framed

would suffice to adjudicate the dispute and accordingly the

Executing court has decided the issue. Hence, the Appellate

Court is not justified in concluding that issues are not framed and

therefore matter requires a remand. In my opinion, the Appellate

Court has failed to have regard to relevant considerations and

disregarded relevant matters. In my considered opinion, the

order passed by the Appellate Court is unsustainable in law.

Substantial question of law is answered accordingly.

The Miscellaneous Second Appeal is allowed. The order

dated:18.09.2014 passed by the Court of II Addl. District Judge,

Chikkamagaluru in R.A.No.62/2013 is hereby set-aside. The

Appellate court is hereby directed to consider the appeal on the

merits and dispose off the same as expeditiously as possible. All

contentions of the parties are kept open.

Sd/-

JUDGE TKN