Karnataka High Court
Mahadevappa vs Siddamallappa on 28 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:17901
RSA No. 1423 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1423 OF 2018 (DEC/INJ)
BETWEEN:
1. MAHADEVAPPA,
S/O CHANNABASAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT
KATTANAVADI VILLAGE,
HARAVE HOBLI,
CHAMARAJANAGAR DISTRICT-571128.
...APPELLANT
(BY SRI SURYA PRAKASH A.M., ADVOCATE)
AND:
1. SIDDAMALLAPPA,
S/O LATE MADAPPA,
Digitally signed AGED ABOUT 68 YEARS.
by DEVIKA M
Location: HIGH
COURT OF 2. SMT. SHIVAMMA,
KARNATAKA W/O SIDDAMALLAPPA,
AGED ABOUT 88 YEARS.
BOTH ARE RESIDING AT
KATTANAVADI VILLAGE,
HARAVE HOBLI,
CHAMARAJANAGARA-571128.
...RESPONDENTS
(BY SRI P.NATARAJU, ADVOCATE FOR R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 04.04.2018
PASSED IN R.A.NO.64/2015 ON THE FILE OF THE ADDL.
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RSA No. 1423 of 2018
SENIOR CIVIL JUDGE AND JMFC AT CHAMARAJANAGAR
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 11.03.2015 PASSED IN O.S.NO.236/2009 ON
THE FILE OF THE PRL. CIVIL JUDGE AND JMFC AT
CHAMARAJANAGAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. The factual matrix of the case of the plaintiffs is that
the plaintiffs filed O.S.No.236/2009 seeking the relief of
declaration and permanent injunction. It is contended in the
suit that the plaintiffs are the absolute owner of the suit
schedule property and sought for declaration. It is also
contended that the plaintiffs are in possession and enjoyment of
the suit schedule property as on the date of filing of the suit.
The defendant/appellant herein took the specific defence in
paragraph No.9 of the written statement that he has got
easementary right. The Trial Court framed the issues and
additional issues and granted the relief of permanent injunction
and dismissed the suit seeking for declaratory relief. Hence, the
plaintiffs filed an appeal in R.A.No.64/2015.
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3. It is submitted by the learned counsel for the
appellant that they have also filed an appeal in R.A.No.39/2015
against the judgment and decree passed in O.S.No.236/2009
granting the relief of permanent injunction and questioning the
finding on additional issue No.2.
4. Both the learned counsel for the appellant and the
learned counsel for the respondents submit that both
R.A.No.64/2015 and R.A.No.39/2015 were pending before the
very same Court i.e., Additional Senior Civil Judge and CJM
Court, Chamarajanagar and the First Appellate Court considered
R.A.No.64/2015 and not taken up the matter for consideration
in R.A.No.39/2015 and when the judgment of the Trial Court is
set aside and the relief of declaration and permanent injunction
is granted, the present second appeal is filed. In view of the
filing of this regular second appeal, R.A.No.39/2015 is disposed
of in view of the pendency of the second appeal.
5. Having taken note of the said fact into consideration,
when two appeals are pending before the First Appellate Court,
the First Appellate Court ought to have considered both the
appeals i.e., R.A.No.64/2015 and R.A.No.39/2015 together for
appreciation of both oral and documentary evidence placed on
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record and the same has not been done. The First Appellate
Court disposed of the impugned judgment in R.A.No.64/2015 on
04.04.2018. It is not in dispute that both the appeals are filed
in 2015. When such being the material on record, it is
appropriate to set aside the order passed by the First Appellate
Court in R.A.No.64/2015 and also the order passed by the First
Appellate Court in R.A.No.39/2015 dated 20.01.2020 in
disposing of the same as otherwise requires to be considered
together and hence the matter requires to be remitted back to
the First Appellate Court to consider both R.A.No.64/2015 and
R.A.No.39/2015 on merits in accordance with law.
6. In view of the discussions made above, I pass the
following:
ORDER
(i) The regular second appeal is disposed of and
the matter is remanded back to the First
Appellate Court.
(ii) The First Appellate Court is directed to restore
back R.A.No.39/2015 and consider both
R.A.No.64/2015 and R.A.No.39/2015 together
on merits in accordance with law.
(iii) Both the parties and their respective learned
counsel are directed to appear before the First
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Appellate Court on 28.06.2024 without
expecting any notice from the First Appellate
Court.
(iv) As the appeals are of the year 2015, the First
Appellate Court is directed to dispose of both
the appeals within a period of six months from
28.06.2024.
(v) The Registry is directed to send back the
records, if any, to the First Appellate Court to
enable the First Appellate Court to take up the
matter on 28.06.2024.
Sd/-
JUDGE
MD
