Karnataka High Court
Smt.Lakshmikanthamma vs K.M.Shankaregowda on 5 August, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:31063
MSA No. 114 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 114 OF 2023
BETWEEN:
1. SMT.LAKSHMIKANTHAMMA
W/O LATE C P DODDEGOWDA
AGED ABOUT 60 YEARS
R/AT NO.CHATTARANAHALLI VILLAGE
DUDDA HOBLI, MANDYA TALUK
NOW R/AT NO.12,
HPO AND RMS LAYOUT,
DR RAJKUMAR MAIN ROAD,
SHANTHINAGAR
MYSORE-570 029
... APPELLANT
(BY SRI. PURUSHOTHAM G., ADVOCATE)
AND:
Digitally
signed by 1. K.M.SHANKAREGOWDA
MALATESH S/O MUDDAIAH
KC
AGED ABOUT 55 YEARS
Location:
HIGH R/AT NO.153 NANJAMMA NILAYA
COURT OF MARIGUDI STREET
KARNATAKA KALLAHALLI
MANDYA CITY-57140
... RESPONDENT
(BY SRI. CHANDAN B.K., ADVOCATE)
THIS MSA IS FILED UNDER SECTION 107 OF CPC, R/W
UNDER ORDER 43 RULE 1(U) OF CODE OF CIVIL PROCEDURE,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
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NC: 2024:KHC:31063
MSA No. 114 of 2023
11.04.2022 IN RA NO.39/2019 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE AND CJM AT MANDYA, CONFIRM THE
JUDGMENT AND DECREE DATED 11.01.2019 PASSED BY ADDL.
CIVIL JUDGE AND JMFC AT MANDYA IN OS NO.112/2010 AND
ALLOW THE APPEAL WITH COSTS IN THE INTEREST OF
JUSTICE.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Though the matter is listed for 'orders', it is taken up
for final disposal by the consent of parties.
2. The second appeal is by the plaintiff challenging
the judgment and decree dated 11.04.2022 passed in
R.A.No.39/2019 by the learned Additional Senior Civil
Judge and C.J.M., Mandya, whereby, the appeal filed by
the respondent-defendant came to be allowed and the
judgment and decree dated 11.01.2019 passed in
O.S.No.112/2010 by the learned Addl. Civil Judge and
J.M.F.C., Mandya, came to be set aside and the matter is
remitted to the trial Court for fresh disposal in accordance
with law after raising an additional issue as hereunder:-
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"Whether the schedule property annexed to the
plaint is properly described?"
3. The facts of the case which are of utmost
necessary for disposal of the appeal are as follows:-
4. The plaintiff filed O.S.No.112/2010 for the relief
of injunction in respect of the property which is a vacant
site bearing Municipal Katha No.D3/3375/KL-945,
measuring East to West-40 feet and North to South-64
feet, situated at V.V. Nagara, Kallahalli, bounded on East
by house of K.C.Channammakegowda, West by house of
D.Thimmaiah, North by sites of M.B. Jogi Boraiah and
South by road.
5. The plaintiff claims right over the suit schedule
property as an absolute owner in lawful possession, which
was earlier part of agricultural land bearing Survey
Nos.205/8 and 205/9, each measuring 0.01½ guntas
situated at Mandya Village, Kasaba Hobli, Mandya Taluk.
Later on, the property came within the jurisdiction of
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Mandya Municipal Corporation and assessed with the
Municipal number. Thereafter the plaintiff is in possession
and enjoyment of the property.
6. The defendant filed written statement denying
the plaintiff's case and contended that the Deputy
Commissioner, Mandya, while passing an order of
alienation as per letter bearing No.ALN/CR/65/1999-2000
dated 14.12.2000 in favour of defendant in respect of the
land covered in Survey No.205/11 to an extent of 0.02
guntas. Therefore, the defendant is in possession of the
said property and he has not encroached the property of
plaintiff nor interfering with the property of plaintiff.
7. Learned Trial Judge, after raising necessary
issues, recorded the evidence of parties and after due
trial, decreed the suit of the plaintiff.
8. Being aggrieved by the same, the defendant
filed an appeal before the Additional Senior Civil Judge and
C.J.M, Mandya in R.A.No.39/2019.
NC: 2024:KHC:31063
9. The learned Trial Judge in the First Appellate
Court after considering the rival contentions of parties,
noted that the description of suit property which is
annexed to the plaint is not properly described, as there is
title in favour of the plaintiff which is showing the land in
survey number and what is claimed in the plaint is the
municipal number. Therefore raised the aforementioned
additional issue and to afford a fair opportunity for the
parties, remitted the matter to the Trial Court for fresh
disposal in accordance with law.
10. Being aggrieved by the same, plaintiff is before
this Court in this second appeal.
11. Having heard the parties in detail, this Court is
of the considered opinion that the additional issue raised
by the First Appellate Court is just and proper in the facts
and circumstances of the case. However, while remitting
the matter to the Trial Court, there is no proper direction
as to on what issue that parties are required to go for
NC: 2024:KHC:31063
re-trial and so also whether the parties are required to
place additional evidence on the additional issue raised.
12. In other words, the remand is an open remand.
Having regard to the facts and circumstances of the case,
as there is already voluminous evidence placed on record,
by both the parties, open remand is impermissible. To
that extent, the order of the First Appellate Court needs
interference by this Court in this second appeal by
exercising the power vested in this Court under Order 43
of C.P.C.
13. Accordingly, the following:-
Order
(i) Appeal is allowed in part, while
maintaining the order of remand passed in
R.A.No.39/2019, the parties are directed to place
additional evidence only on the additional issue
referred to supra, before the Trial Court.
(ii) Thereafter, the Trial Court is required
to dispose of the suit afresh, in the light of the
additional issue and the additional evidence
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placed on record on or before 30.11.2024 to
meet the ends of justice.
(iii) Needless to emphasize that parties
are directed to co-operate for the early disposal
of the suit.
(iv) In that regard, without further notice,
the parties shall appear before the Trial Court
positively on 27.08.2024 and proceed with the
case, in accordance with law.
Sd/-
(V SRISHANANDA)
JUDGE
VGR
