Karnataka High Court
Sri Ramakrishnappa vs Smt Narayanamma on 6 August, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:31241
MSA No. 46 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL No.46 OF 2017
BETWEEN:
1. SRI RAMAKRISHNAPPA
S/O LATE NARAYANASWAMY,
DEAD BY HIS LEGAL REPRESENTATIVES
(DIED ON 26.08.2023)
1(a) SRI MANJUNATHA
AGED ABOUT 35 YEARS
S/O LATE RAMAKRISHNAPPA
R/AT NO.27, KOLIPURA VILLAGE
BANDIKODIGEHALLI
BANGALORE NORTH TALUK -562 149
2. SRI SURESH
S/O LATE MUNI ANJANAPPA
DEAD BY HIS LEGAL REPRESENTATIVES
(DIED ON 17.07.2019)
Digitally
2(a) SMT.P.KAVITHA
signed by AGED ABOUT 37 YEARS
MALATESH W/O LATE SURESH
KC R/AT UTTANAHALLI
Location: KOLIPURA, CHIKKAJALA
HIGH BANGALORE NORTH TALUK-562 157
COURT OF
KARNATAKA
2(b) DHANUSHREE.S
AGED ABOUT 20 YEARS
D/O LATE SURESH
RESIDING AT KOLIPURA
BANDI KODIGEHALLI
BANGALORE NORTH TALUK-562 157
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NC: 2024:KHC:31241
MSA No. 46 of 2017
2(c) DHAKSHATH GOWDA
AGED ABOUT 18 YEARS
S/O LATE SURESH
R/AT UTTANAHALLI
KOLIPURA,
CHIKKAJALA
BANGALORE NORTH TALUK-562 157
...APPELLANTS
(BY SRI B S NAGARAJ, ADVOCATE)
AND:
1. SMT NARAYANAMMA
AGED ABOUT 71 YEARS,
W/O LATE GOVINDASWAMY,
KOLIPURA VILLAGE,
JALA HOBLI,
BENGALURU NORTH (ADD)
TALUK, PIN-562 149
...RESPONDENT
(BY SRI B.MANJUNATH, ADVOCATE (ABSENT))
THIS MSA IS FILED UNDER ORDER XLIII RULE 1 (U) R/W
SECTION 104 OF THE CPC., AGAINST THE JUDGMENT AND
DECREE DTD 10.03.2017 PASSED IN R.A.NO.15050/2016 ON
THE FILE OF THE VTH ADDL. DIST. AND SESSIONS JUDGE,
DEVANAHALLI, BANGALORE RURAL DISTRICT, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DTD 26.09.2014 PASSED IN O.S.NO.372/2006 ON THE FILE OF
THE ADDITIONAL CIVI JUDGE & JMFC., DEVANAHALLI,
DECREEING THE SUIT FOR PERMANENT INJUNTION AND
REMANDING THE MATTER BACK FOR FRESH DISPOSAL IN
ACCORDANCE WITH LAW.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:31241
MSA No. 46 of 2017
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri B.S.Nagaraj, learned counsel for the appellants.
None present for the respondent.
2. Parties are referred to as plaintiff and defendant as per
their ranking before the Trial Court, for the sake of
convenience.
3. Defendants in O.S.No.372/2006 have challenged the
Order passed in R.A.No.15050/2016 dated 10.03.2017 on the
file of the V Addl. District and Sessions Judge, Devanahalli,
Bengaluru Rural District, whereby, the judgment and decree
passed in O.S.No.372/2006 dated 26.09.2014 on the file of the
Addl. Civil Judge and JMFC, Devanahalli, was set-aside and the
matter was remitted to the Trial Court for fresh disposal in
accordance with law, especially, with regard to question of
payment of Court fee vide issue No.4.
4. Facts in brief which are utmost necessary for disposal of
the present second appeal are as under:
NC: 2024:KHC:31241
A suit came to be filed in O.S.No.372/2006 for the relief
of declaration and permanent injunction in respect of the
immovable house property situated in Sy.No.41/4,
khaneshumari No.23, measuring to an extent of 15 guntas of
Kolipura village, Jala Hobli, Bengaluru North Taluk. The suit on
contest came to be decreed with costs.
5. Being aggrieved by the same, defendants filed an appeal
before the First Appellate Court.
6. Learned Judge in the First Appellate Court after
considering the rival contentions of the parties, allowed the
appeal of the defendants and remitted the matter to the Trial
Court for fresh disposal in accordance with law especially
directing to consider issue No.4 which was on the question of
court fee.
7. Being aggrieved by the same, defendants are before this
Court by way of this appeal.
8. Sri B.S.Nagaraj, learned counsel for the appellants,
reiterating the grounds urged in the appeal memorandum,
vehemently contended that approach of the First Appellate
NC: 2024:KHC:31241
Court in remitting the matter to the Trial Court for fresh
disposal is incorrect and learned Judge in the First Appellate
Court itself could have decided the issue No.4 and passed the
judgment by itself. Instead of doing so, open remand is
incorrect and sought for allowing the appeal.
9. Learned counsel for the respondent is absent.
10. In the light of the arguments put forward on behalf of the
appellants, this Court perused the material on record,
meticulously.
11. On such perusal material on record, it is crystal clear that
it is the plaintiff who had filed suit for declaration and
permanent injunction valuing the suit property. Based on the
plea of the defendants in regard to improper valuation in
respect of suit property, issue No.4 was framed by the Trial
Court.
12. Learned Trial Judge has answered issued No.4 in the
impugned judgment while decreeing the suit in favour of
plaintiff.
NC: 2024:KHC:31241
13. That was one of the grounds that was urged by
defendants before the First Appellate Court for setting aside the
judgment and decree.
14. So also, First Appellate Court took into consideration that
the property cannot be treated as an agricultural property as
there is a house in the property and the property is now within
the jurisdiction of municipal limits. Therefore, court fee paid is
improper and accepted the contention of the defendant and
set-aside the judgment and decree and remitted the matter to
hold a fresh enquiry especially with regard to issue No.4.
15. In fact, it is the defendants who have succeeded in the
First Appeal and therefore, strictly speaking they are not
aggrieved by the impugned judgment. If at all if anybody is
aggrieved, it should have been plaintiff.
16. But plaintiff has accepted the judgment of the First
Appellate Court and matter is to be now considered by the Trial
Court with regard to issue No.4, afresh in accordance with law.
NC: 2024:KHC:31241
17. Under such circumstances, there are no merits in any one
of the grounds urged in the appeal memorandum, so as to
allow the appeal.
18. Hence, the following:
ORDER
(i) Appeal is dismissed.
(ii) No order as to costs.
(iii) Taking note of the age of the suit, Trial Court
shall expedite the suit and dispose of the
same afresh, in accordance with law, after
affording necessary opportunity for the
parties, within a time frame, not later than
20th December 2024.
(iv) Needless to emphasize that the parties shall
co-operate for the same.
(v) Parties shall appear before the Trial Court
without further notice, on 27th August 2024.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
