Karnataka High Court
Sri Sannegowda vs Smt Mayamma on 6 August, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:31242
MSA No. 2 of 2017
C/W MSA No. 3 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. 2 OF 2017 (RO)
C/W MISCELLANEOUS SECOND APPEAL NO. 3 OF 2017
IN M.S.A.No.2/2017
BETWEEN:
1. SRI SANNEGOWDA
S/O DODDAHYDEGOWDA @ HALAGEGOWDA
AGED BOUT 61 YEARS
R/O GULAGHATTA VILLAGE
KASABA HOBLI
MALAVALLI TALUK-571 430
MANDYA DISTRICT
...APPELLANT
(BY SRI ANIL KUMAR S, ADVOCATE)
AND:
1. SMT MAYAMMA
Digitally signed by W/O LATE BASAVEGOWDA @ BOMMEGOWDA
MALATESH K C
Location: HIGH
AGED ABOUT 70 YEARS
COURT OF R/O GULAGHATTA VILLAGE
KARNATAKA
KASABA HOBLI
MALAVALLI TALUK-571 430
MANDYA DISTRICT
2. HALAGEGOWDA
S/O DODDAHYDEGOWDA @ HALAGEGOWDA
AGED ABOUT 58 YEARS
R/O GULAGHATTA VILLAGE
KASABA HOBLI
MALAVALLI TALUK-571 430
MANDYA DISTRICT
-2-
NC: 2024:KHC:31242
MSA No. 2 of 2017
C/W MSA No. 3 of 2017
3. SECRETARY
NELAMAKANAHALLI GRAMA PANCHAYATH
KASABA HOBLI
MALAVALLI TALUK-571430
MANDYA DISTRICT
...RESPONDENTS
(R1 TO R3 ARE SERVED AND UNREPRESENTED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF THE
CPC, AGAINST THE JUDGMENT AND DECREE DTD 18.10.2016
PASSED IN RA.NO.88/2014 ON THE FILED OF THE SENIOR
CIVIL JUDGE AND JMFC., ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DTD 10.10.2014
PASSED IN OS.NO.95/2011 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE, MALAVALLI AND REMANDING BACK THE CASE
TO THE TRIAL COURT WITH A DIRECTION.
IN M.S.A.No.3/2017
BETWEEN
SRI SANNEGOWDA
S/O DODDAHYDEGOWDA @ HALAGEGOWDA,
AGED ABOUT 61 YEARS,
R/O GULAGHATTA VILLAGE,
KASABA HOBLI,
MALAVALLI TALUK - 571 430
MANDYA DISTRICT.
...APPELLANT
(BY SRI ANIL KUMAR S, ADVOCATE)
AND
SMT MAYAMMA
W/O LATE BASAVEGOWDA @ BOMMEGOWDA,
AGED ABOUT 70 YEARS,
R/O GULAGHATTA VILLAGE,
KASABA HOBLI, MALAVALLI TALUK - 571 430
MANDYA DISTRICT.
...RESPONDENT
(BY SRI GOPI FOR SRI P.M.SIDDAMALLAPPA, ADVOCATES)
-3-
NC: 2024:KHC:31242
MSA No. 2 of 2017
C/W MSA No. 3 of 2017
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
18.10.2016 PASSED IN R.A.NO.89/2014 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 10.10.2014 PASSED IN OS NO.245/10 ON THE FILE OF
THE PRL. CIVIL JUDGE, MALAVALLI, REMANDING THE CASE
BACK THE TRIAL COURT WITH A DIRECTION TO DISPOSE THE
MATTER IN ACCORDANCE WITH LAW.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Anil Kumar, learned counsel for the appellant
and Sri Gopi for Sri P.M.Siddamallappa, learned counsel 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. These Second Appeals are by the plaintiff in
O.S.No.245/2010 on the file of the Prl. Civil Judge, Malavalli,
challenging the Order of remand passed in R.A.Nos.88/2014
and 89/2014 dated 18.10.2016 on the file of the Senior Civil
Judge and JMFC, Malavalli, whereby, the First Appellate Court
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set-aside the decree obtained by the plaintiff and dismissal of
the suit of the defendant.
4. Facts in brief which are utmost necessary for disposal of
the present second appeal are as under:
Appellant filed a suit in O.S.No.245/2010 for the relief of
permanent injunction whereas, respondent No.1 herein filed
O.S.No.95/2011 for the relief of declaration and injunction.
The learned Trial Judge, after considering the rival contentions
of the parties, by common Judgment dated 10.10.2014,
decreed the suit of the appellant and dismissed the suit of the
respondent No.1.
5. Being aggrieved by the same, respondent filed two
appeals before the First Appellate Court in R.A.Nos.88/2014
and 89/2014.
6. The learned Judge in the First Appellate Court, after
considering the rival contentions of the parties, dealt the case
of the parties in detail and noticed that there is serious dispute
with regard to identity of the property. Therefore, felt
necessity of appointment of the Court Commissioner and with
that direction, the judgment was set-aside and matter was
NC: 2024:KHC:31242
remitted to the Trial Court for fresh disposal in accordance with
law after getting a Court Commissioner appointed to find out
the identity of the property.
7. Being aggrieved by the same, plaintiff in
O.S.No.245/2010 is before this Court in this Second Appeal.
8. Sri Anil Kumar, learned counsel for the appellant,
reiterating the grounds urged in the appeal memorandum,
vehemently contended that the approach of the First Appellate
Court in setting aside the well reasoned judgment of Trial Court
is incorrect.
9. If there was any difficulty in arriving at a finding with
regard to identity of the property, nothing prevented the
learned Judge in the First Appellate Court to appoint a Court
Commissioner before the First Appellate Court itself and
proceeded with the case in accordance with law. Therefore,
remand order is incorrect and needs to be setaside.
10. Per contra, Sri Gopi, learned counsel for the respondents
supports the impugned judgment.
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11. Having heard the parties in detail, this Court perused the
material on record meticulously.
12. On such perusal of the material on record, it is to be
noted that the suit property in both the suits are one and same
property. There is an allegation and counter allegation by the
parties.
13. Under such circumstances, learned Judge in the First
Appellate Court noticed that appointment of a Court
Commissioner would meet the ends of justice having regard to
the real dispute between the parties and any amount of oral
evidence placed on record by the parties would not be sufficient
enough to establish the identity of the suit property. Therefore,
allowed the appeals by setting aside the impugned judgments
and remitted the suits for fresh disposal with a direction to get
the Court Commissioner appointed for the purpose of
identifying the suit property. The said order is under challenge.
14. Having noticed the material evidence on record, this
Court is of the considered opinion that there is no legal infirmity
by the First Appellate Court in remitting the matter to the Trial
Court as the real controversy between the parties needs to be
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sorted out by appointing a Court Commissioner for local
investigation and also to provide opportunity for both the
parties to place additional evidence if any, on record.
15. Under such circumstances, the appeal is meritless and
the following Order is passed.
ORDER
(i) Appeals are dismissed.
(ii) However, taking note of the fact that suit is of
the year 2010, learned Trial Judge shall
conclude the suit on or before 20th December
2024.
(iii) Needless to emphasize that the parties shall
co-operate for the same.
(iv) Parties shall appear before the Court without
further notice, on 27th August 2024.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
