Karnataka High Court
Sri. S. T. Narayanappa vs Sri Basavarajappa on 7 August, 2024
Author: V Srishananda
Bench: V Srishananda
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MSA No. 107 of 2019
C/W MSA No. 106 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 107 OF 2019
C/W
MISCELLANEOUS SECOND APPEAL NO. 106 OF 2019
IN MFA NO. 107/2019
BETWEEN:
SRI. S.T. NARAYANAPPA,
S/O SRI. THIMANNA,
AGED ABOUT 52 YEARS,
R/AT SHIVANAGERE VILLAGE,
DODDERI HOBLI,
MADHUGIRI TALUK - 572 132.
...APPELLANT
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)
AND:
1. SRI. BASAVARAJAPPA,
Digitally AGED ABOUT 72 YEARS,
signed by
MALATESH
KC 2. SRI. JAYANNA,
Location: AGED ABOUT 70 YEARS,
HIGH
COURT OF 3. SRI. GANGADHARA,
KARNATAKA AGED ABOUT 67 YEARS,
RESPONDENT NO.1 TO 3 ARE
R/AT SHIVANAGERE VILLAGE,
MADHUGIRI TALUK - 572 132.
4. SRI. HONNESHAPPA,
S/O TALEMARADA HONNAPPA,
AGED ABOUT 65 YEARS,
R/AT SAJJE HOSAHALLI VILLAGE,
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NC: 2024:KHC:31811
MSA No. 107 of 2019
C/W MSA No. 106 of 2019
DODDERI HOBLI, MADHUGIRI TALUK.
...RESPONDENTS
(BY SRI. SRIVATSA RAO, ADVOCATE FOR
SRI. KASHYAP N. NAIK, ADVOCATE FOR R1 TO R3;
R4 SERVED AND UNREPRESENTED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.03.2019
PASSED IN RA.NO.5066/2018 (OLD RA 40/2015) ON THE FILE
OF THE 4TH ADDITIONAL DISTRICT AND SESSIONS JUDGE
MADHUGIRI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 19.01.2015 PASSED IN
O.S.NO.273/2009 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC, MADHUGIRI, AND REMANDING BACK THE
MATTER TO TRIAL COURT FOR FRESH DISPOSAL IN
ACCORDANCE WITH LAW.
IN MSA NO. 106/2019
BETWEEN:
SRI. S.T. NARAYANAPPA,
S/O THIMMANNA,
AGED ABOUT 53 YEARS,
R/AT SHIVANAGERE VILLAGE,
DODDERI HOBLI 572 132,
TUMAKURU TALUK AND DISTRICT.
...APPELLANT
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)
AND:
1. SRI. BASAVARAJAPPA,
S/O LATE ERANAGAPPA,
AGED ABOUT 74 YEARS,
2. SRI. JAYANNA,
SON OF ERANGAPPA,
AGED ABOUT 72 YEARS,
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MSA No. 107 of 2019
C/W MSA No. 106 of 2019
3. SMT. SUVARNAMMA,
W/O S. NAGARAJU,
AGED ABOUT 41 YEARS,
4. SMT. KUSUMA,
W/O RAGHAVENDRA,
D/O S. NAGARAJU,
AGED ABOUT 32 YEARS,
R/AT VIDYA NAGAR,
SIRA TOWN - 572 137,
TUMAKURU DISTRICT.
5. SRI. MANJUNATHA S.N,
S/O S. NAGARAJU,
AGED ABOUT 28 YEARS,
6. SRI. GANGADHARA,
SON OF LATE ERANAGAPPA,
AGED ABOUT 60 YEARS,
RESPONDENTS NO.1 TO 3, 5 AND 6 ARE
R/AT SHIVANAGERE VILLAGE,
DODDERI HOBLI - 572 132,
TUMAKURU TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI. SRIVATSA RAO, ADVOCATE FOR
SRI. KASHYAP N. NAIK, ADVOCATE FOR R1 TO R6)
THIS MSA IS FILED UNDER ORDER XLIII RULE 1(u) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
29.03.2019 PASSED IN RA.NO.5060/2018 ON THE FILE OF
THE 4th ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MADHUGIRI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 19.01.2015 PASSED IN
OS.NO.126/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC., AT MADHUGIRI, REMANDING BACK THE MATTER
TO THE TRIAL COURT FOR FRESH DISPOSAL.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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MSA No. 107 of 2019
C/W MSA No. 106 of 2019
ORAL JUDGMENT
Heard Sri.V.B.Siddaramaiah, learned counsel for the
appellant and Sri.Srivatsa, learned counsel appearing on
behalf of Sri.Kashyap N. Naik, for respondent Nos.1 to 3.
2. These two appeals are filed by the plaintiff in
O.S.No.126/2007 and defendants in O.S.No.273/2009
challenging the order of remand passed in RA
No.5060/2018 and RA No.5066/2018 on the file of IV
Addl. District and Sessions Judge, Madhugiri.
3. Brief facts of the case which are utmost
necessary for disposal of the appeals are as under:
3.1. In respect of property bearing Sy.No.145(old
Sy.No.256) of Shivanagiri Village which was originally a
Jodi Inam Land measuring 24 acres, out of which 12 acres
15 guntas belonged to Bheemanna S., Ananth Rao,
S.Sheshagiri Rao and Narashimamurthy, who were the
Jodidhars.
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3.2. On commencement of Inam Abolition Act, an
application for regrant was filed before the Special Deputy
Commissioner, Bengaluru.
3.3. As per the order dated 16.12.1963, there was a
regrant order. The land in Sy.No.145(old Sy.No.256) was
originally called as 'Vadakatte Mundala Jamennu'.
3.4. It is further contended that on the Eastern side
of the said land, Mudlegowda had purchased the land in
the very same survey number measuring 7 acres 35
guntas from the jodidars under the registered sale deed
dated 12.09.1964 and who in turn sold the property by a
registered sale deed dated 27.03.1987. Thereafter, the
purchaser was in possession and enjoyment of the said
land.
3.5. In respect of the very same land, there was a
counter suit by the respondents in these two appeals
seeking for declaration and permanent injunction were as
the appellant herein had filed the suit for relief of
permanent injunction.
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4. Learned Trial Judge heard the parties in detail
and by separate judgments, dismissed the suit of the
respondents by judgment dated 19.01.2015 and decreed
the suit of the appellants and granted the order of
injunction.
5. Being aggrieved by the same, two appeals were
filed by the respondents herein one challenging the grant
of injunction and another challenging the dismissal of the
suit.
6. Both the appeals were heard by learned Judge
in the First Appellate Court at Madhugiri. While
considering the rival contentions of the parties, learned
Judge in the First Appellate Court noted that application
was filed by the respondents whereby the records from the
revenue authorities was sought to be procured and also
appointment of the Court Commissioner to ascertain the
existence of the land with the boundaries as is claimed by
the parties.
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7. Without disposing of the said application on
merits, learned Trial Judge has disposed of the suits
resulting in miscarriage of justice is the finding recorded
by the learned Judge in the First Appellate Court and then
allowed the appeal by remitting the matter to the Trial
Court for considering necessary pending applications. It
also directed for appointment of the Court Commissioner
at the cost of the respondents herein and to proceed with
the suit within a time frame and dispose of the suit.
8. Being further aggrieved by the orders passed
by the First Appellate Court in RA No.5066/2018 and RA
No.5060/2018, these two appeals are filed.
9. Sri.V.B.Siddaramaiah, learned counsel
contended that remand of the matter by the First
Appellate Court is incorrect inasmuch as the First Appellate
Court itself should have taken necessary steps to appoint
a Court Commissioner and proceed with the matter in
accordance with law and thus, the order of remand is
incorrect.
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10. Per contra, Sri.Srivatsa, learned counsel for the
respondents supported the impugned judgments.
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
crystal clear that learned Trial Judge without passing any
orders on the pending interim application, proceeded to
pass the judgment resulting in miscarriage of justice. The
same is sought to be corrected by the learned Judge in the
First Appellate Court.
13. In the remand order, learned Judge in the First
Appellate Court has directed that the Court Commissioner
to be appointed at the cost of the respondents in this
appeal, who are the plaintiffs in O.S.No.273/2009 and
then dispose of the suit afresh in accordance with law.
14. The view taken by the First Appellate Court is in
consonance with the decision rendered by the Division
Bench of this Court in the case of Veera Vahana Udyog
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Private Limited, Represented by its Managing
Director V/s. The Karnataka State Road Transport
Corporation, Represented by Managing Director and
Others reported in ILR 2010 KAR 507.
15. At this juncture, Sri.V.Siddaramaiah, learned
counsel apprehends that the admissions given by the
parties should not be allowed to be diluted by fresh
adjudication of the suits before the Trial Court.
16. It is needless to emphasize that the admission
given by a party cannot be allowed to be withdrawn and it
could only be explained.
17. However, the admission is a stray admission or
admission going to be very basis for adjudging the rights
of the parties will have to be decided by the Court in
accordance with law after both the parties place additional
material on record.
18. Accordingly, the following:
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ORDER
i. Appeals are dismissed.
ii. The order of remand is up held. However
taking note of the fact that suits are of the
year 2007 and 2009, learned Trial Judge is
directed to expedite the trial and conclude
the same after getting necessary documents
summoned from the authorities on or before
20.12.2024.
iii. Needless to emphasize that parties shall
cooperate for early disposal of the suit.
iv. Parties shall appear before the Trial Court
without further notice on 28.08.2024.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
List No.: 1 Sl No.: 37/CT: BHK
