Karnataka High Court

Smt K S Savithri vs Kamalaksha on 30 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                 MSA No. 80 of 2018




                                                     ®
                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 30TH DAY OF JULY, 2024

                                    BEFORE
                    THE HON'BLE MR. JUSTICE V SRISHANANDA
            MISCELLANEOUS SECOND APPEAL NO. 80 OF 2018 (RO)


            BETWEEN:

            1.    SMT. K.S. SAVITHRI
                  W/O K.N. SEETHARAMAYYA,
                  AGED ABOUT 71 YEARS
                  R/A GOWRIGAGANAGIRI HOUSE,
                  KOLLAMOGARU VILLAGE & POST,
                  SULLIA TALUK,
                  D.K.DISTRICT-574218.

            2.    K.S. GOWRISHANKARA
                  S/O K.N. SEETHARAMAYYA,
                  AGED ABOUT 63 YEARS
                  AGRICULTURIST,
                  R/A KATTA GOWRIGAGANAGIRI HOUSE,
Digitally         KOLLAMOGARU VILLAGE & POST,
signed by         SULLIA TALUK,
MALATESH
KC                D.K.DISTRICT-574 218.
Location:                                             ...APPELLANTS
HIGH        (BY SRI. K. RAVISHANKAR, ADVOCATE)
COURT OF
KARNATAKA
            AND:

            1.      KAMALAKSHA
                    S/O M. ANGARA GOWDA,
                    AGED ABOUT 49 YEARS,
                    AGRICULTURIST,
                    MULUBAGILU HOUSE,
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                                      MSA No. 80 of 2018




2.     DEVIDAS KAJJODI
       SINCE DEAD BY HIS LRs

2(A)   SMT. MOHANAGI,
       W/O DEVIDAS KAJJODI,
       AGED ABOUT 55 YEARS,

2(B). JAYAPRAKASH
      S/O DEVIDAS KAJJODI,
      AGED ABOUT 35 YEARS,

2(C). YATHISH
      S/O DEVIDAS KAJJODI,
      AGED ABOUT 30 YEARS,

       ALL ARE RESIDING AT
       MULUBAGILU HOUSE,
       KOLLAMOGARU VILLAGE & POST,
       SULLIA TALUK,
       D.K.DISTRICT-574 218.

2(D). NAMITHA K
      W/O SANDEEP K,
      D/O DEVIDAS KAJJODI,
      AGED ABOUT 32 YEARS
      HOTEL PALLAVI BUS STAND ROAD,
      HALGERI, KUMUTA,
      UTTARA KANNADA-581 355.

3.     KESHAVA KATTA
       S/O RAMAYYA,
       AGED ABOUT 56 YEARS
       AGRICULTURIST,
       MULUBAGILU HOUSE,

4.     NARAYANA BATTODI
       S/O NEELAPPA GOWDA,
       AGED ABOUT 51 YEARS,
       MULUBAGILU HOUSE,
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                                            MSA No. 80 of 2018




      RESPONDENT NOS.3 AND 4 ARE
      R/A KOLLAMOGARU VILLAGE AND POST,
      SULLIA TALUK,
      D.K.DISTRICT-5742 18.
                                      ...RESPONDENTS
(BY SRI. ASHISH RAM D, ADVOCATE FOR
    SRI. KRISHNA MOORTHY D, ADVOCATE FOR
    R1, R2, R2(A-D), R3 & R4)

     THIS MSA IS FILED UNDER ORDER XLIII RULE 1[u] OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
02.07.2018 PASSED IN R.A.NO.119/2005 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., SULLIA, D.K., ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 17.09.2005 PASSED IN OS NO.15/97 ON THE FILE OF
THE CIVIL JUDGE [JR.DN] AND JMFC., SULLIA, D.K. AND
REMANDING BACK THE MATTER TO TRIAL COURT TO ISSUE
NOTICE TO THE GENERAL PUBLIC AS CONTEMPLATED UNDER
ORDER 1, RULE 8 OF CPC.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                     ORAL JUDGMENT

Heard Sri K. Ravishankar, learned counsel for the

appellants and Sri Aashish Ram, appearing on behalf of Sri

Krishnamurthy D., counsel for the respondents.

2. Second appeal is filed by the plaintiff in

O.S.No.15/1997, on the file of Civil Judge (Jr.Dn) and JMFC.,

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Sullia, Dakshina Kannada, challenging the order passed in

R.A.No.119/2005, dated 02.07.2018, on the file of Senior Civil

Judge and JMFC., Sullia, Dakshina Kannada, whereunder the

judgment and decree passed in O.S.No.15/1997 set aside the

matter was remitted to the Trial Court.

3. Facts in brief which are utmost necessary for

disposal of the second appeal are as under:

Plaintiff filed a suit for declaration that defendant Nos.1 to

4 and other public have got right only as a permissive users in

respect of the pathway situated three feet width, running from

South to North which is in the plaint schedule property and has

got the length of 324 links, touching the Western Boundary line

of the plaint 'A' schedule property which is situated in

Sy.No.162/2B, adjoining the land bearing Sy.No.160 of

Kollamogru village and defendants and others have no rights

whatsoever to interfere or widen the said pathway without the

consent of the plaintiff and consequential relief.

4. The suit was contested and suit came to be decreed

as under:

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"The suit of the plaintiffs is decreed with costs as follows:

It is declared that the defendants no.1 to 4 have right only as permissive users to use the pathway of six to feet in width to the Eastern side of the mud compound wall running from South to North parallel to the mud compound wall near and along the Western boundary line of the plaint 'A' schedule property in sy.no.162/28 adjoining the mud compound wall and the defendants or persons claiming through or under them have no right to form or widen the said pathway in the plaint 'A' schedule property without the consent of the plaintiffs.

The defendants or persons claiming through or under them are restrained by way of permanent prohibitory injunction from interfering with the peaceful possession and enjoyment of the plaint 'A' schedule property.

The defendants are directed by way of mandatory injunction to restore to its original position the said pathway of six feet in width to the Eastern side of the mud compound wall running in North-South direction in the Western boundary line of the plaint 'A' schedule property parallel to the mud compound wall situated on the West of the said pathway.

The suit of the plaintiff claiming declaration against the public is dismissed."

5. Being aggrieved by the said, defendants No.1 to 4

filed an appeal before the District Court which is numbered as

R.A.119/2005.

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6. The learned Judge in the First Appellate Court

secured the records and heard the parties in detail. Thereafter,

allowed the appeal as under:

"The appeal filed by the appellant u/s 96, Order 41, Rule 1 of C.P.C. is hereby allowed.

In the result the judgment and decree passed by the trial court in O.S.No.15/1997 is hereby set aside.

The matter/suit is remanded to the trial court and it is directed to issue notice to the general public as contemplated u/o 1, rule 8 of CPC calling upon the interested persons to file their written statement/objections and there after frame the issues and permit the public to lead evidence and permit the parties to lead evidence on their side and also permit the appellants herein to mark the documents which are produced by them before this court along with I.A. u/o 41, rule 27 of CPC and there after pass the judgment after hearing on both sides.

The suit is of the year 1997 hence the trial court is directed to dispose the matter within six months from the date of receipt of the records. Both the parties are directed to appear before the trial court on 12.7.2018 and co-operate the trial court for disposal of the matter without obtaining un- necessary adjournments."

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7. Being aggrieved by the same, the plaintiff is before

this Court.

8. Sri K. Ravishankar, learned counsel for the

appellants reiterating the grounds urged in the appeal

memorandum contended that admittedly suit came to be filed

by the plaintiff based on the title possessed by her and he also

took a specific contention that defendant Nos.1 to 4 and other

general public may use the three feet passage which is part of

the schedule property belonging to the plaintiff as permissive

users and not as the ownership and they do not have any

further right over the path way either expanding it or for

making use of the same any other purpose except ingress and

egress to reach the Western boundary.

9. He also contended that when the plaintiff has made

a specific prayer about the defendant Nos.1 to 4, who are the

adjoining owners, and in general for the public, there was no

necessity for the Trial Court to direct the plaintiff to issue notice

under Order 1 Rule 8 of Civil Procedure Code for interested

persons converting the suit of the plaintiff into a representative

character. Therefore, the order passed by the First Appellate

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Court as referred to supra has resulted in miscarriage of justice

and sought for allowing the appeal.

10. He also pointed out that the learned Judge in the

First Appellate Court has accepted the additional evidence

based on record by the defendants and for the said purpose

also the matter was remitted to the Trial Court which is equal

useful having regard to order XLI Rule 25 Civil Procedure Code

and sought for allowing the appeal.

11. Per contra, Sri Aashish Ram, appearing on behalf of

Sri Krishnamurthy D., counsel for the respondents supports the

impugned order.

12. Having heard the parties in detail this Court

perused the material on record meticulously. On such perusal

of the material on record, it is crystal clear that the plaintiff suit

prayer was one for declaration and the plaintiff based his claim

on the title possessed by him in respect of the suit property.

13. He also contended that the three feet passage

which is situated in the plaint schedule property was used for

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free movement and ingress and egress to reach the other

portions of the lands and the same should not be treated as a

right, except for the free movement which is in the nature of a

permission granted by the plaintiff to defendant Nos.1 and 4

and such other public who would like to make use of the said

pathway.

14. When such is the specific prayer, plaintiff being the

master of the suit, has chosen, who are the defendants, who

are interfering with her peaceful possession and enjoyment of

the three feet passage which is described in the plaint schedule

and has sought for the prayer against the defendant Nos.1 to 4.

15. It is to be noted that the declaratory relief is a

judgment in rem, and it would not only restrict to the

defendants, but which would also against the rest of the world.

By way of abundant caution, the plaintiff must have used the

word that other public which the learned Judge in the First

Appellate Court mis understood that the prayer is against the

rest of the world and the suit is to be considered as a suit for in

a representative manner.

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16. What is to be looked into under Order I Rule 8 of

Civil Procedure Code is the plaintiff claiming the relief not only

for herself and for general public as a whole and not the claim

against the rest of the people in a specifically drafted suit.

17. Therefore, the approach of the First Appellate Court

in directing the plaintiff to convert the suit into a representative

capacity cannot be countenanced in law.

18. In this regard learned counsel for the appellants has

placed reliance on the judgment of the Hon'ble Apex Court in

the case of Hari Ram v. Jyoti Prasad and another reported

in 2011 (2) SCC 682 and relevant paragraphs 19 which reads

as under:

"19. The next plea which was raised and argued vehemently by the learned Senior Counsel appearing for the appellant was that the suit was bad for non- compliance with the provisions of Order 1 Rule 8 CPC. The said submission is also found to be without any merit as apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected. Since the affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of

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alleged non-compliance with the provisions of Order 1 Rule 8 CPC."

19. Following the principles of enunciated in the above

judgment in the case on hand, the directions issued by the First

Appellate Court to convert the suit into representative capacity

cannot be countenanced in law.

20. This would take the matter to the next question on

which the First Appellate Court wanted the matter to be

remitted is for taking the additional evidence on record.

21. Since in the impugned judgment itself, learned

Judge has ruled that the additional evidence placed on record

by filing an application under Order XLI Rule 27 Civil Procedure

Code is to be taken as marked as an exhibit, the First Appellate

Court itself can afford an opportunity for the plaintiff to contest

the evidentiary/probative value of additional evidence placed on

record and dispose of the appeal by itself instead of remitting

the matter to the Trial Court, as unjust remand is not

justifiable.

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Accordingly, from the foregoing discussion, following:

ORDER

(i) Appeal is allowed in part.

(ii) The direction issued by the First Appellate Court for

the plaintiff to convert the suit into a representative

suit by issuing a necessary notice under Order I

Rule 8 of Civil Procedure Code is hereby set aside.

(iii) So also remitting the suit to the Trial Court for the

purpose of taking the additional evidence on record

and dispose of the suit afresh in accordance with

law is also set aside.

(iv) Instead, the appeal in R.A.No.119/2005 shall be

decided by the First Appellate Court by taking the

additional evidence on record and also allowing the

plaintiff/respondent in the said appeal to contest

the veracity/probative value of the additional

evidence, if need be by affording an opportunity to

cross-examine the defendant who wants to place