Sri. Shivalingaiah vs Mrs. Reshma
2023 Latest Caselaw 4586 Kant

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                                                     NC: 2023:KHC:25033
                                                          MSA No. 1 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 18TH DAY OF JULY, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                    MISCELLANEOUS SECOND APPEAL NO. 1 OF 2023 (RO)

                   BETWEEN:

                   1.    SRI. SHIVALINGAIAH
                         S/O GENDEGOWDA
                         AGED ABOUT 57 YEARS
                         R/O KUNTANAHALLI VILLAGE
                         KOPPA HOBLI, MADDUR TALUK
                         MANDYA DISTRICT-571 425.
                                                            ...APPELLANT

                               (BY SRI. BASAVARAJU P., ADVOCATE)
                   AND:

                   1.    MRS. RESHMA
                         D/O K.S. BASHA
                         AGED ABOUT 37 YEARS
                         R/O KESTUR VILLAGE
Digitally signed
by SHARANYA T            ATHAGUR HOBLI
Location: HIGH           MADDUR TALUK
COURT OF                 MANDYA DISTRICT
KARNATAKA
                         REP. BY HER P.A. HOLDER
                         SMT.KAMARUNNISA
                         W/O K.S. BASHA
                         R/O KESTUR VILLAGE
                         ATHAGUR HOBLI
                         MADDUR TALUK
                         MANDYA DISTRICT-571433
                                                            ...RESPONDENT

                             (BY SRI. NANJUNDA SWAMY N., ADVOCATE)
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                                      NC: 2023:KHC:25033
                                             MSA No. 1 of 2023




     THIS MSA IS FILED UNDER SEC.100 R/W ORDER 43 RULE
1(U) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
16.08.2022 PASSED IN RA.NO.2/2020 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MADDUR,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 07.11.2019 PASSED IN O.S.NO.346/2010
ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC,
MADDUR. DISMISSING THE SUIT FOR DECLARATION AND
INJUNCTION. REMAND THE MATTER BACK TO THE TRIAL
COURT OF LEARNED I ADDITIONAL CIVIL JUDGE AND JMFC,
MADDUR, U/O 41 RULE 23-A OF CPC FOR RETRIAL AND
DISPOSAL AFRESH IN ACCORDANCE WITH LAW.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Heard the appellant's counsel and also the counsel

appearing for the respondent.

2. This appeal is filed challenging the order passed by the

first appellate court in RA No.2/2020 and the appellate Court

while passing an order of setting aside the judgment and

decree of the trial Court remanded the matter to the trial Court

under Order 41 Rule 23A of CPC for re-trial and disposal afresh

in accordance with law by re-admitting the suit under its

original number in the register of civil suits and by taking into

consideration the observation made in the order. Further, the

trial Court was directed to give an opportunity to both the

NC: 2023:KHC:25033 MSA No. 1 of 2023

parties to lead additional evidence if any, with respect to the

aspects discussed in the judgment including an opportunity to

the parties to apply for local inspection by invoking Order 26 of

CPC and the parties shall appear on 5.9.2022 for the purpose of

receiving the directions of the trial Court as to further

proceedings in the suit.

3. The counsel appearing for the appellant would

vehemently contend that there was no need to remand the

matter and suit is filed for the relief of only declaration and

injunction and no dispute with regard to the boundaries

between the parties and the respondent/plaintiff has to prove

his case on his own with regard to his title and also weakness

of the defendants cannot be relied upon and the same is not a

basis for considering the suit of the plaintiff and first appellate

Court committed an error in remanding the matter.

4. Per contra, the counsel appearing for the respondent

brought to the notice of this Court that the trial Court

committed an error in coming to the conclusion that Order 7

Rule 3 is not complied and also not considered the documents

which have been produced by the plaintiff before the trial Court

NC: 2023:KHC:25033 MSA No. 1 of 2023

and counsel brought to the notice of this Court paragraph 17

wherein the appellate Court comes to the conclusion that trial

Court committed an error with regard to non-compliance of

Order 7 Rule 3 and on perusal of the pleadings, evidence and

entire trial Court records, the plaintiff has described the suit

property in the plaint schedule with gram panchayath serial and

property numbers, measurement and boundaries and also

relied upon the documents Ex.P2 and also discussed with

regard to the mentioning of the document as Ex.D1 wherein

also no measurement is mentioned in the document relied upon

by the defendant and also taken note of the fact that in the

document Ex.D1 only describing the property mentioned the

plaintiff's ancestors are the adjacent owner and identification of

the property is also necessary, since in both the documents

proper measurements are not mentioned both in the case of

plaintiff as well as the defendant and hence, if necessary to

make local inspection and the same is observed in paragraph

No.21 of the judgment of the first appellate Court and also

taken note of the judgment in the case of RAHUL S SHAH Vs.

JINENDRA KUMAR GANDHI AND OTHERS reported in

(2021) 6 SCC 418, wherein also the Apex Court observed

NC: 2023:KHC:25033 MSA No. 1 of 2023

Court may appoint the Commissioner for the purpose of

carrying out the local inspection for recording the exact

description and demarcation of the property including the

nature and occupation of the property and hence rightly

remanded the matter and it does not requires any interference.

5. Having heard the respective counsel and also on

perusal of the material available on record, admittedly the suit

is for the relief of declaration to declare that the plaintiff is the

absolute owner in actual possession and enjoyment of the suit

schedule property and for permanent injunction and the very

claim that defendant interfering with the peaceful possession

and enjoyment of the plaintiff's property i.e. in respect of the

suit schedule property. The trial Court also framed the issues

with regard to the pleadings of the parties whether there was

interference and trial Court also having considered the evidence

available on record dismissed the suit, hence an appeal was

filed. In the appeal, the trial Court having considered the

reasoning given by the trial Court in paragraph 17 comes to the

conclusion that the order of the trial Court that there is no

compliance of the Order 7 Rule 3 is incorrect and also taken

note of the documents of both plaintiff and defendant and with

NC: 2023:KHC:25033 MSA No. 1 of 2023

regard to the measurement and very specific case of the

plaintiff that defendant is interfering with their possession and

suit is also for declaration and not for possession and the very

contention of the appellant counsel that plaintiff has sought for

any relief of possession, but only contention of the plaintiff that

defendant is interfering with his possession of the property and

the first appellate Court also taken note of the document of

Ex.D1 produced by the defendant wherein also the

measurement is not mentioned only they relies upon the

boundaries mentioned in the document and when such notice

was made by the appellate Court and in the document also only

boundaries are mentioned and not measurement is shown in

the document of Ex.D1 and no doubt there a force in the

contention of the appellant counsel that plaintiff has to prove

his case on his own legs and not on the weakness of the

defendant and when the dispute is with regard to the actual

measurement and boundaries and appellate Court rightly

comes to the conclusion that appointment of a Commissioner if

necessary for identification of the property with regard to that

there is a interference, allegation is made in the plaint and local

inspection is necessary and also taken note of the fact that in

NC: 2023:KHC:25033 MSA No. 1 of 2023

Ex.D1 also does not mention the extent of the property

described and when such observation is made, I do not find any

error committed by the first appellate Court in remanding the

matter and direction was given if necessary to make necessary

application under Order 26 Rule 9 for local inspection and take

a decision in view of the observation made in the order.

6. Hence, I do not find any error committed by the first

appellate Court in remanding the matter with a direction and

this Court can take note of the fact that it is a suit of the year

2010 and already we are in 2023 and matter has been more

than a decade. When such being the case, a time bound

direction can be given to the trial Court to consider and dispose

of the same within a period of six months.

7. Both appellants counsel and also the counsel for the

respondents are directed to appear before the trial Court and

assist the trial Court in disposal of the case within the time

bound period.

With this observation, MSA is disposed of.

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The observations made by this Court shall not influenced

the trial Court while considering the matter on merits.

Sd/-

JUDGE

AP