Karnataka High Court
Sri Suresh Kamath vs Immaculate Conception Church on 2 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 973 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 973 OF 2025 (POS)
BETWEEN:
SRI SURESH KAMATH,
SINCE DECEASED,
1. SMT. PRATHIMA KAMATH
AGED ABOUT 54 YEARS,
W/O LATE SURESH KAMATH
2. SRI SACHIN KAMATH
AGED ABOUT 29 YEARS,
S/O LATE SURESH KAMATH
3. SRI SAURAV KAMATH
AGED ABOUT 26 YEARS,
Digitally signed S/O LATE SURESH KAMATH
by DEVIKA M
Location: HIGH
COURT OF ALL ARE RESIDING AT A-806,
KARNATAKA MANDAVI EMERALD
SHIVALLI VILLAGE MANIPAL - 576 104,
UDUPI TALUK
...APPELLANTS
(BY SRI. K CHANDRANATH ARIGA, ADVOCATE)
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RSA No. 973 of 2025
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AND:
IMMACULATE CONCEPTION CHURCH
(ALSO KNOWN AS COSSESSAM CHURCH)
SITUATED AT KINNIGOLI,
REPRESENTED BY ITS PRIEST
1. PARISH PRIEST VERY REV. FR. ALOYSIUS ROSARIO,
NOW REV. FR. STANY TAURO AND
NOW REV. FR. JOHN SALDANHA,
AGED ABOUT 81 YEARS,
NOW BY VINCENT MONTERO,
S/O RAYMOND MONTERO,
PARISH PRIEST OF IMMACULATE
CONCEPTION CHURCH,
KINNIGOL - 574 150.
2. ADMINISTRATOR JOHN D'SOUZA
S/O LATE MARCEL D'SOUZA,
NOW JOSEPH QUADRAS,
NOW JEMOME MORAS,
NOW BY MR. VINCENT VINODHU D'SOUZA
ADMINISTRATOR OF IMMACULATE CONCEPTION
CHURCH, KINNIGOLI,
BOTH ARE RESIDING IN THALIPADY VILLAGE,
POST: KINNIGOLI - 574 150,
MANGALORE TALUK.
3. VASUMATHI
AGED ABOUT 66 YEARS
4. SMT. PARVATHI
AGED ABOUT 64 YEARS
5. SRI GANESH
AGED ABOUT 62 YEARS
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6. SMT. SUDHA
AGED ABOUT 60 YEARS
7. SRI PRAKASH
AGED ABOUT 53 YEARS
3 TO 7 ARE THE CHILDREN
OF LATE GOPALAKRISHNA KAMATH
RESIDING AT GUNDALA HOUSE,
MANNEBETTU VILLAGE,
POST: KINNIGOLI - 574 150,
MANGALORE TALUK, D.K.DISTRICT.
8. PARISH PRIEST FR. ALFRED G. PINTO
ADULT, S/O LOUIS PINTO
IMMACULATE CONCEPTION CHURCH,
KINNIGOLI - 574 150, D.K.
9. ADMINISTRATOR
MR. LIONEL PINTO
S/O LATE CHARLES PINTO,
PINTO LAYOUT,
OPP: SYNDICATE BANK,
KINNIGOLI - 574 150.
...RESPONDENTS
(BY SRI. CYRIL PRASAD PAIL, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 15.03.2025. PASSED IN
R.A.NO.52/2023 AND 53/2023 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC, MOODABIDRI, D.K. PARTLY ALLOWING THE
APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED
23.02.2024 PASSED IN O.S.NO.230/1990 ON THE FILE OF III
ADDITIONAL CIVIL JUDGE (Jr. Dn) AND JMFC, KARKALA.
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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for consideration of I.A1/2025 for
stay.
2. Heard the learned counsel appearing for the
appellant and learned counsel appearing for the respondent.
3. Having perused the records, it is clear that suit was
filed on 17.04.1990. The relief is sought for possession and the
suit was disposed of on 23.02.2004 and thereafter appeal was
filed and appeal was respondent-numbered and ultimately the
appeal was disposed of on 15.03.2025.
3. Learned counsel appearing for the appellant would
vehemently contend that though there is a concurrent finding
but property description is not properly mentioned and hence,
this court has to admit the appeal. Learned counsel also does
not dispute the fact that Commissioner was appointed before
the appellate court in view of the direction given by this court
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in writ petition while disposing of the same. The Commissioner
has also given the report and the appellate court while
modifying the judgment partly decreed the suit with a
particular description and this order has been challenged before
this court.
4. Learned counsel appearing for the respondent
would contend that the respondent is struggling from 1990 i.e.,
almost 35 years have been elapsed by filing the suit for relief
of possession and though the suit was disposed of on 2004,
R.A. was pending from 2005 and later on, it was re-numbered
and the present R.As are disposed of with a direction to hand
over the possession and made an attempt to take possession
for 3 1/2 decade and have filed the Regular Second Appeal.
5. In response to this, learned counsel for the
appellant would contend that they have already filed execution
petition and ordered to deliver the possession and police help is
sought, but not yet executed.
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6. Having heard the learned counsel for the appellant
and also learned counsel for the respondent and also
considering the fact that the suit is of the year 1990 for seeking
the relief of possession and the trial court granted the relief and
the same is modified by the appellate court with a direction to
deliver the vacant possession of the premises bearing door
No.K-8-79 of Kinnigoli Town Panchayath existing in
Sy.No.123/1 of Thalipady Village, Mangaluru to the plaintiff -
church and also made it specific that they shall vacate the only
premises situated in Sy.No.123/1 (now Sy.No.123/1A1) shown
in sketch filed by the Commissioner dated 09.07.2024 and
specifically identified within 60 days. It is important to note
that when the writ petition was filed, an application was filed to
appoint a Commissioner and accordingly a Commissioner was
appointed and he has also given the report and in terms of the
said report, the order has been passed by the appellate court.
When such being the case, I do not find any error in the order
passed by the appellate court as the same is also based on the
Commissioner's report.
When this court found that there is no merit in the
matter, at this juncture, learned counsel for the appellant
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submits that they are running the hotel in the premises and 7
months time may be granted. Taking into consideration that
the parties have fought more than 3 1/2 decade, granting of 7
months time as sought for can be considered subject to filing of
the affidavit by the appellants before this court within one week
from today with an undertaking that they will vacate the
premises without seeking any further extension of time. In view
of the above discussion, I pass the following:
ORDER
(i) The appeal is dismissed.
(ii) The appellants are directed to vacate the premises
within 7 months from today and also file an undertaking
affidavit before this court within one week that they would
vacate the premises without seeking any further extension of
time.
(iii) The appellants are directed to pay the mesne profits
as ordered by the trial court within two months from today and
the same shall also be narrated in the affidavit with an
undertaking that the amount will be paid within two months. If
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such affidavit is not filed before this court, the appellants will
not enure the benefit of this order.
Sd/-
(H.P.SANDESH)
JUDGE
SS
CT: BHK
