Karnataka High Court
Sri Ronald Pinto vs Sri Vincent D Souza on 5 August, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:31043
MSA No. 134 of 2018
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. 134 OF 2018 (RO)
BETWEEN:
SRI. RONALD PINTO,
AGED ABOUT 55 YEARS,
S/O LATE THOMAS PINTO,
UREKHA HOUSE,
MENNABETTU VILLAGE,
POST KINNIGOLI - 574 150,
MANGALORE TALUK,
D.K. DISTRICT.
...APPELLANT
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)
AND:
SRI. VINCENT D'SOUZA,
AGED ABOUT 74 YEARS,
Digitally
signed by S/O BENJAMIN D'SOUZA,
MALATESH PRESENTLY R/AT FLAT NO.A2,
KC
STARLET APARTMENT,
Location:
HIGH SHIVABAGH ROAD,
COURT OF MANGALORE - 575 002,
KARNATAKA
D.K. DISTRICT.
...RESPONDENT
(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.09.2018
PASSED IN RA NO.138/2011 ON THE FILE OF THE VI
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MSA No. 134 of 2018
ADDL.DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 15.09.2011 PASSED IN OS NO.256/2005
ON THE FILE OF THE SENIOR CIVIL JUDGE AND ACJM.,
KARKALA AND REMANDING THE MATTER TO TRIAL COURT FOR
FRESH DISPOSAL BY GIVEN AN OPPORTUNITY TO BOTH SIDES.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri K. Chandranath Ariga, learned counsel for the
appellant and Sri Sanath Kumar Shetty, learned counsel for the
respondent.
2. This second appeal is filed by the defendant
challenging the order passed in RA No.138/2011 filed by the
plaintiff who challenged the judgment passed in
O.S.No.256/2005, whereby the suit of the plaintiff came to be
dismissed. The learned Judge in the First Appellate Court after
entertaining the appeal, by the judgment dated 29.09.2018,
set aside the judgment passed by the trial Court in
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O.S.No.256/2005 and remitted the matter to the trial Court on
the following additional issue.
"Whether defendant/respondent proves Maria
Marnel D'Souza Bai made a Will in favour of Lucy
Crasta on 8.9.1960 and bequeathed the suit and
other properties to her?"
3. The facts in brief which are utmost necessary for
disposal of the appeal are as under;
3.1 A suit came to be filed in O.S.No.256/2005 for the
relief of possession contending that plaint 'A' Schedule Property
originally belongings to his grandmother viz., Maria Marcel
D'Souza Bai who had executed the settlement deed on
12.08.1955 in favour of her daughter Kitheria D'Souza, who is
the mother of the plaintiff. Said Kitheria D'Souza in turn,
executed a further Settlement Deed on 02.02.1995 in favour of
the plaintiff and thus, the plaintiff became the lawful owner in
possession in respect of the suit property and the residential
house.
3.2 The grandmother of the defendant viz., Lucy Crasta
approached plaintiff's grandmother and requested her to stay in
the suit premises on a temporary basis on leave and licence.
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Out of humanitarian ground, the grandmother of the plaintiff
permitted her to stay in the suit property as a licencee.
Plaintiff's mother also permitted the grandmother of the
defendant to continue to stay in the schedule premises till her
death as a permissive occupant. Lucy Crasta died on
04.09.1994 and the defendant who is the grand son of Lucy
Crasta, residing with her till her death, continued to stay in the
suit property even after her death. His possession is therefore
illegal and wrongful and therefore, necessity arose for the
plaintiff to file suit for possession.
3.3 Upon receipt of suit summons, the defendant
appeared and filed detailed written statement denying the
plaint averments.
3.4 The learned trial Judge after framing necessary
issues, recorded evidence of the parties and by the judgment
dated 15.09.2011, dismissed the suit of the plaintiff.
4. Being aggrieved by the same, the plaintiff filed an
appeal before the District Court at Mangalore in RA
No.138/2011.
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5. The learned Judge in the First Appellate Court after
securing the records and hearing the parties in detail, inter-alia
raised additional issue as referred to supra and remitted the
matter for fresh disposal in accordance with law.
6. Being aggrieved by the said remand order, the
defendant is before this Court in this appeal.
7. Sri K. Chandranath Ariga, learned counsel for the
appellant, reiterating the grounds urged in the appeal
vehemently contended that the First Appellate Court grossly
erred in framing the additional issue as referred to supra as the
lis between the parties was based on the Will executed by Maria
Marcel D'souza Bai in favour of Lucy Crasta on 08.09.1960, who
is the grandmother of the defendant and therefore, the suit
claim was incorrect and sought for admitting the appeal for
further consideration.
8. Per contra, Sri Sanath Kumar Shetty, learned
counsel for the respondent supports the impugned judgment.
9. Having heard the parties in detail, this Court
perused the material on record meticulously.
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10. On such perusal of the material on record, it is
crystal clear that at an undisputed point of time, the property
belongs to Maria Marcel D'Souza Bai. She has executed a
settlement deed in favour of the mother of the plaintiff in the
year 1955. Subsequently, another settlement deed has been
executed by the mother of the plaintiff in favour of the plaintiff.
11. The contra title that has been contended before the
trial Court was that Maria Marcel D'Souza Bai has executed a
Will on 08.09.1960 in favour of Lucy Crasta and thereafter, the
said Lucy Crasta has executed a Will in favour of the defendant,
which has been probated and therefore, the suit of the plaintiff
is not maintainable.
12. Taking note of the fact that there is already a
settlement deed in the year 1955 executed by Maria Marnel
D'Souza Bai in favour of the mother of the plaintiff, the
subsequent execution of the Will whether conveyed any right,
title or interest baring the fact that the subsequent Will of Lucy
Crasta in favour of the defendant, which has been probated
would convey any right, title or interest is a question that had
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to be gone into by the trial Court before dismissing the suit of
the plaintiff.
13. Such an exercise has not been carried out. Further,
issue No.5 came to be deleted suo-moto by the trial Court
without affording proper opportunity for the parties which made
the learned Judge in the First Appellate Court to remit the
matter to the trial Court for fresh disposal in accordance with
law.
14. This Court having regard to the powers vested with
it under Order 43 CPC does not find any legal infirmity or
perversity in remitting the matter to the trial Court for fresh
disposal in accordance with law in respect of the additional
issue and permission for the plaintiff to prove the settlement
deed. Accordingly, the following;
ORDER
i. Appeal is dismissed.
ii. However, the trial Court is directed to conclude
the suit as early as possible, but not later than
31.03.2025 after affording suitable opportunities
for the parties to place additional evidence, if
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any, on the additional issue raised by the
parties.
iii. Needless to emphasize, the parties shall co-
operate for early disposal of the suit.
iv. In that regard, the parties shall appear before
the trial Court without further notice on
28.08.2024 and proceed with the case in
accordance with law.
Sd/-
(V SRISHANANDA)
JUDGE
PN
