Karnataka High Court
Shasappa S/O Sangappa Malagan vs Goudappagouda S/O Ramangouda Patil on 2 September, 2024
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RSA No. 200284 of 2016
C/W RSA No. 200173 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.200284 OF 2016 (INJ)
C/W
REGULAR SECOND APPEAL NO.200173 OF 2016 (INJ)
IN RSA NO.200284/2016:
BETWEEN:
GOUDAPPAGOUDA S/O RAMANAGOUDA PATIL,
AGE: 50 YEARS, OCC: FIELD SUPERVISOR
NANDI SUGAR FACTORY & AGRICULTURE,
R/O SHIRABUR, TQ. VIJAYAPUR,
DIST. VIJAYAPUR-586 101.
...APPELLANT
Digitally signed (BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE)
by RENUKA
Location: HIGH AND:
COURT OF
KARNATAKA
1. SHASAPPA S/O SANGAPPA MALAGAN,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O SHIRABUR, TQ. VIJAYAPUR,
DIST. VIJAYAPUR-586 101.
2. SATTEWWA W/O ANNAPPA BABALESHWAR,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O SHIRABUR, TQ. VIJAYAPUR,
DIST. VIJAYAPUR-586 101.
3. THE SECRETARY,
GRAM PANCHAYAT, GUNADAL,
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RSA No. 200284 of 2016
C/W RSA No. 200173 of 2016
TQ. VIJAYAPUR,
DIST. VIJAYAPUR-586 101.
...RESPONDENTS
(SRI VINAYAK APTE, ADVOCATE FOR R1;
SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE FOR R3;
V/O DTD. 06.08.2024, APPEAL AGAINST R2 IS DISMISSED
AS ABATED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 11.02.2016 PASSED IN
R.A.NO.115/2013 BY THE III ADDITIONAL SENIOR CIVIL
JUDGE, VIJAYAPUR AND CONSEQUENTLY RESTORE THE
JUDGMENT AND DECREE DATED 02.09.2013 PASSED IN
O.S.NO.439/2009 BY THE I ADDITIONAL CIVIL JUDGE AND
JMFC, VIJAYAPUR.
IN RSA NO.200173/ 2016:
BETWEEN:
SHASAPPA S/O SANGAPPA MALAGHAN,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O SHIRABUR,
TQ. & DIST. VIJAYAPUR-586 101.
BY HIS P A HOLDER
SANGAPPA S/O SHASAPPA MALAGHAN,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O SHIRABUR,
TQ. & DIST. VIJAYAPUR-586 101.
...APPELLANT
(BY SRI VINAYAK APTE, ADVOCATE)
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RSA No. 200284 of 2016
C/W RSA No. 200173 of 2016
AND:
1. GOUDAPPAGOUDA S/O RAMANGOUDA PATIL,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O SHIRABUR,
TQ. & DIST. VIJAYAPUR-586 101.
2. SATTEWWA W/O ANNAPPA BABALESHWAR,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O SHIRABUR,
TQ. DIST. VIJAYAPUR-586 101.
3. THE SECRETARY, GRAM PANCHAYAT, GUNADAL.
TQ.& DIST. VIJAYAPUR-586 101.
...RESPONDENTS
(SRI ANANTH S. JAHAGIRDAR, ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
11.02.2016 PASSED IN R.A.NO.116/2013 ON THE FILE OF THE
COURT OF THE III ADDITIONAL SENIOR CIVIL JUDGE,
VIJAYAPUR, BY ALLOWING THE APPEAL, DECREE THE COUNTER
CLAIM OF DEFENDANT NO.1 BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 02.09.2013 PASSED IN
O.S.NO.439/2009 ON THE FILE OF THE COURT OF
IST ADDITIONAL CIVIL JUDGE AND JMFC-1, VIJAYAPUR AND
ORDER FOR COSTS OF THIS APPEAL.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 200284 of 2016
C/W RSA No. 200173 of 2016
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard the learned counsel appearing for the parties.
2. Though the appeals are listed for admission,
with the consent of both the learned counsel, they are
taken up for final disposal.
3. The suit filed before the Trial Court is one for
bare injunction in O.S.No.439/2009 on the file of I Addl.
Civil Judge, Vijayapur. The plaintiff claims injunction in
respect of a vacant space in Gunadal Gram Panchayat
limits. The suit property is bearing No.4/4. The description
shown in the plaint does not provide the extent of land.
A sketch is appended to the plaint and in the said sketch,
the plaintiff claims that the suit property measures 20 feet
east-west and 25 feet north-south and it is shown as
'EBCF' in the sketch.
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4. The defendants contested the suit. Defendant
No.1 filed counter claim and he filed his own sketch along
with the written statement and the open space with 'EBCF'
in the sketch appended to the plaint is described as part of
the property bearing VPC No.281/1.
5. The 2nd defendant adopted the written
statement filed by the 1st defendant.
6. The Trial Court decreed the suit and dismissed
the counter claim. Defendants No.1 and 2 filed appeals in
R.A.No.115/2013 and R.A.No.116/2013. R.A.No.115/2013
challenging the judgment and decree, granting a decree in
favour of the plaintiff is set aside and the suit is dismissed.
R.A.No.116/2013 challenging the judgment and decree,
refusing a decree in counter claim is also dismissed.
Hence, the plaintiff has filed RSA No.200284/2016 and
defendant No.1 has filed RSA No.200173/2016.
7. It is stated that respondent No.2/defendant
No.2 died during the pendency of these appeals. The
plaintiff/appellant in RSA No.200284/2016 has not taken
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steps to substitute the legal representatives of deceased
respondent No.2 and the appeal against respondent No.2
is dismissed as abated. Defendant No.1, who is the
appellant in RSA No.200173/2016 has filed an application
to substitute the legal representatives of deceased
respondent No.2.
8. The First Appellate Court while allowing
R.A.No.115/2013 and consequently dismissing the suit in
O.S.No.439/2009 has observed that the plaintiff has to file
a suit claiming declaration and injunction or possession as
the case may be.
9. As can be noticed, the suit is one for bare
injunction in respect of property described as 'EBCF' in the
sketch appended to the plaint. The title deed in respect of
the said property is not produced by the plaintiff.
Incidentally, defendant No.1 has also claimed right over
the said property on the premise that the said property is
part of VPC No.281/1. This Court does not find any
illegality in the order passed by the First Appellate Court in
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R.A.No.115/2013, wherein the liberty is granted to the
plaintiff to file comprehensive suit by seeking appropriate
relief of declaration.
10. IN RSA No.200284/2016: No substantial
question of law would arise for consideration. Accordingly,
the appeal is dismissed.
11. IN RSA No.200173/2016: It is to be noticed
that defendant No.1 is also claiming right in respect of the
very same property by describing the same as property
bearing VPC No.281/1. Since the plaintiff is permitted to
file a comprehensive suit, this Court is of the view that the
appeal filed by defendant No.1 seeking decree of
declaration and injunction in respect of the same property
has to be allowed and the matter has to be remitted to the
Trial Court to consider the counter claim afresh. Hence,
the following:
ORDER
i. The appeal is allowed.
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ii. The matter is remitted to the Trial Court to
consider the counter claim.
iii. Since the counter claim has to be decided on
merit and since the plaintiff is permitted to file
a fresh suit in terms of the impugned judgment
and decree passed by the First Appellate Court,
this Court is of the view that instead of
directing the plaintiff to file a fresh suit, the
plaintiff may be permitted to amend the plaint
to make it comprehensive.
iv. Once such an amendment is permitted,
defendant No.1 shall be permitted to file an
additional written statement and thereafter, the
Court shall consider the plaint and counter
claim in accordance with law without being
influenced by any of the observations made in
the impugned judgments and decrees.
v. It is made clear that nothing is expressed on
the merits of the case.
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vi. In case the parties intend to substitute the legal
representatives of deceased respondent No.2,
the Trial Court shall allow the said application.
vii. The parties shall appear before the Trial Court
on 30.09.2024.
viii. Consequently, I.A.Nos.1/2023 to 3/2023 are
dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
LG
