Karnataka High Court
Smt. Nagarathnamma vs K.S.Gopala on 6 August, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:31170
MSA No. 11 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 11 OF 2017 (RO)
BETWEEN:
1. SMT. NAGARATHNAMMA
W/O LATE K.L.MOTHILAL,
AGED ABOUT 73 YEARS,
2. K.M. CHANDRAMOHAN
S/O LATE K.L.MOTHILAL,
AGED ABOUT 55 YEARS,
3. K.M. SHIVAKUMAR
S/O LATE K.L. MOTHILAL,
AGED ABOUT 50 YEARS,
4. K.M. DAYANAND
S/O LATE K.L. MOTHILAL,
AGED ABOUT 48 YEARS,
5. K.M. RAJASHEKHARA
S/O LATE K.L. MOTHILAL,
Digitally AGED ABOUT 45 YEARS,
signed by
ALL ARE RESIDENTS OF T.M.ROAD,
MALATESH
KC KOPPA TOWN, KOPPA TALUK,
CHIKMAGALUR DISTRICT - 577 548.
Location:
HIGH ...APPELLANTS
COURT OF (BY SRI. N. R. RAVIKUMAR, ADVOCATE)
KARNATAKA AND:
K.S.GOPALA
S/O K.T. SANJEEVAGOWDA,
R/AT T.M. ROAD,
KOPPA TOWN, KOPPA TALUK,
CHIKMAGALUR DISTRICT - 577 548.
...RESPONDENT
(BY SRI. N. R. JAGADEESWARA, ADVOCATE)
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NC: 2024:KHC:31170
MSA No. 11 of 2017
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF
CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED
15.02.2016 PASSED IN RA.NO.64/2013 ON THE FILE OF THE
1st ADDL. SESSIONS JUDGE, CHIKKAMAGALURU, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED: 08.03.2013 PASSED IN OS.NO.56/2006 ON THE FILE
OF THE ADDL. SENIOR CIVIL JUDGE, CHIKMAGALUR,
REMANDING BACK TO THE TRIAL COURT WITH DIRECTIONS.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.N.R.Ravikumar, learned counsel for the
appellants and Sri.N.R.Jagadeeswara learned counsel for
respondent.
2. The defendants in O.S.No.56/2006 who are the
plaintiffs in O.S.No.258/2006 are the appellants in the
second apeal.
3. The present appeal is filed by the appellants to set
aside the judgment and decree passed by the 1st
Additional District Judge, Chikamagaluru in
R.A.No.54/2013 dated 15.02.2016 and to confirm the
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judgment and decree passed by the Addl. Senior Civil
Judge, Chikmagalur in O.S.No.56/2006 dated 08.03.2013.
4. Brief facts of the case which are utmost necessary
for disposal of the appeal are as under:
5. Two suits came to be filed in OS No.56/2006 and
O.S.No.258/2006 for the relief of declaration and
mandatory injunction by respondent and the appellants
respectively on the file of Senior Civil Judge,
Chikmagaluru. Both the suites were tried in common and
common judgment came to be passed, dismissing both the
suits by judgment dated 8.03.2013.
6. Being aggrieved by the same, the plaintiff in
OS.No.56/2006 alone filed an appeal in RA No.64/2013.
The defendants for the reasons best known to them, did
not challenge the dismissal of their suit in OS
No.258/2006.
7. Learned judge in the first appellate court after
considering the rival contentions of the parties, noted that
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there was a Court Commissioner who has been appointed
to find out about the extent of the encroachment, and
Commissioner's report came to be filed after the
Commissioner was arrested by issuing the arrest warrant.
The parties have only filed the statement of objections to
the commissioner report and did not choose to summon
the Commissioner to cross examine the Commissioner.
Therefore remitted the matter back to the Trial Court for
further disposal in accordance with law.
8. Since the Trial Court judgment is set aside, the
defendants who are the appellants in this appeal have also
got a chance to re-agitate their case before the trial court.
Not noticing that without filing an appeal, the defendants
have got a chance to re-agitate their claim before the trial
court, they have chosen to appeal against the judgment
passed in Regular Appeal No.64/2013.
9. Having heard the parties and this court perused
the material on record meticulously. On such perusal of
the material on record, it is crystal clear that the Court
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Commissioner came to be appointed to find out what is
the encroachment by either of the parties into their
respective portions and Court Commissioner gave the
report.
10. In fact the Commissioner was appointed at the
instance of the present appellant. The Commissioner gave
report stating that it is the appellants who have
encroached the property to the extent of 1123.32 square
feet into the property of the plaintiff. Despite such report,
the trial court dismissed the suit of the respondent/plaintiff
in O.S.No.56/2006 by holding that the plaintiff failed to
prove the ownership in respect of the claim made by them
to the land to the extent of 7867.50 square feet.
11. Taking note of the fact, that the Commissioner
needs to be cross-examined in view of the objection
statement filed by both the parties, first appellate court
remanded the matter to the trial court, permitting the
parties to summon the Commissioner for cross-
examination.
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12. In fact the memo with certified copy filed by the
respondent would go to show that the Commissioner is
now cross-examined by the very same appellants as well.
13. Under such circumstances finding fault with the
order of the remand by the appellants would not hold
merit.
14. Accordingly, the following:
ORDER
Appeal is merit less and is hereby dismissed.
Sd/-
(V SRISHANANDA)
JUDGE
AKV
CT:SK
