Karnataka High Court
Sri. Prabhakara Gowda vs Zilla Panchayath on 16 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 91 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO. 91 OF 2023 (RO)
BETWEEN:
1. SRI. PRABHAKARA GOWDA,
S/O SRI. CHANDRASHEKARAPPA GOWDA,
AGED ABOUT 50 YEARS,
R/O KATWAI VILLAGE,
CHANDRAGUTTI HOBLI,
SORBA TALUK-577 413.
2. SRI. VIJAYAKUMAR GOWDA,
(WRONGLY SHOWN AS H.B.GANARAJAPPA GOWDA),
S/O SRI. CHANDRASHEKARAPPA GOWDA,
AGED ABOUT 48 YEARS,
R/O KATWAI VILLAGE,
CHANDRAGUTTI HOBLI,
SORBA TALUK-577 413.
Digitally signed
by DEVIKA M
3. SRI. NAGARAJA GOWDA,
Location: HIGH
COURT OF S/O SRI CHANDRASHEKARAPPA GOWDA,
KARNATAKA AGED ABOUT 43 YEARS,
R/O KATWAI VILLAGE,
CHANDRAGUTTI HOBLI,
SORBA TALUK-577 413.
...APPELLANTS
(BY SRI. PRASHANTH H.S., ADVOCATE)
AND:
1. ZILLA PANCHAYATH,
SHIVAMOGGA,
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER,
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MSA No. 91 of 2023
HC-KAR
ZILLA PANCHAYATH,
SHIVAMOGGA-577 201.
2. TALUK PANCHAYATH,
REPRESENTED BY ITS
EXECUTIVE OFFICER,
TALUK PANCHAYATH,
SORAB-577 413.
3. GRAM PANCHAYATH,
CHANDRAGUTTI,
REPRESENTED BY ITS
PANCHAYATH DEVELOPMENT OFFICER,
CHANDRAGUTTI VILLAGE PANCHAYATH,
CHANDRAGUTTI,
SORBA TALUK-577 413.
...RESPONDENTS
(BY SRI. B.J.SOMAYAJI, ADVOCATE FOR R1 TO R3)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) R/W
SECTION 151 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 11.04.2023 PASSED IN R.A.NO.10022/2019 ON THE
FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS
JUDGE, SHIVAMOGGA, SITTING AT SAGARA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 01.07.2019 PASSED IN O.S.NO.26/2014 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC, SORABA AND THE
MATTER IS REMANDED BACK TO THE TRAIL COURT FOR
FRESH DISPOSAL BY GIVING AN OPPORTUNITY TO BOTH THE
PARTIES TO LEAD FURTHER EVIDENCE IF ANY ON THEIR
BEHALF.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MSA No. 91 of 2023
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for the appellants and
also the learned counsel for the respondents. This
Miscellaneous Second Appeal is filed challenging the order of
remand made by the First Appellate Court.
2. The factual matrix of the case of the
plaintiffs/appellants before the Trial Court while seeking the
relief of declaration, possession and damage is that they are
the absolute owners of the suit schedule property and to close
the disputed road and gutter and to bring back the suit
schedule property to its cultivable position and also sought for
the damages to the tune of Rs.25,000/-. It is also contended
that they have orally partitioned the family properties. Thus,
they are the joint owners of the suit schedule property in
Sy.No.61/2 and it has been further divided and has been
newly numbered as Sy.No.61/2, Sy.No.61/3 and Sy.No.61/4.
The total extent of the suit schedule property is 6 acres 10
guntas. The plaintiffs have divided the suit schedule property
between themselves and are jointly enjoying the property and
cultivating the suit schedule property. It is also contended
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that they are the absolute owners of the suit schedule
property and also contend that in the karab portion of
Sy.No.61/2, totally measuring 17 acres 32 guntas earlier to
1964, a new road was formed and space meant for pathway
was included in the road. The new road has been formed in 1
acre 8 guntas of karab land. The P.W.D department has
converted the road and developed it and this road is leading
from Chandragutti to Siddapura and it has been made as a
concrete road. This concrete road is different from the suit
schedule road and there is no other road or pathway in
Sy.No.61/2 as per the survey documents and there is no
karab portion.
3. The fact being this, in the southern portion of the
suit schedule property, the defendant No.3 under the political
influence has tried to form a new road from East to West
direction leading from Katuvai to Basthikoppa village. But the
suit schedule property has not been acquired legally and
inspite of requisition of the plaintiffs, the defendants have
formed the new road. Further, the defendant No.3 Gram
Panchayat has formed the gutter on either side of the road.
Therefore, 23 guntas of the suit schedule property has been
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utilized for forming of the new road. This 23 guntas has been
left out and the plaintiffs are not being able to cultivate the 23
guntas. It is also contended that every year, they were
growing dry crops in this 23 guntas of property and they were
getting about Rs.25,000/-. But due to the forcible formation
of the road, the plaintiffs have sustained loss about
Rs.25,000/- every year. Hence, filed the suit and sought for
the relief of declaration, possession and also the damages.
4. In pursuance of the suit of the plaintiffs, the
defendants appeared and filed the written statement
contending that true facts are that there was a road in
Sy.No.61/2 since 30-40 years and it is the road meant for use
of public and school children from Katuwai to Basthikoppa and
this road is the link road from Katuwai to Basthikoppa. In the
13th financial project, the road was developed. But, before
the road was being developed, Nagarajagowda i.e., plaintiff
No.3 caused obstruction and therefore, further developments
were stopped. In the year 2012-13, the road was developed.
This road was in existence earlier and it is not a new road.
The plaintiffs have not lost any cultivable portion of the suit
schedule property and he was not growing any crop.
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5. Having considered the pleadings of the parties,
the Trial Court framed the issues and allowed the parties to
lead evidence. Having considered the material available on
record, the Trial Court granted the relief as sought in the
plaint.
6. Being aggrieved by the said judgment and decree
of the Trial Court, R.A.No.10022/2019 is filed. The First
Appellate Court having considered the grounds urged in the
appeal and also taking note of the non-framing of the issues
with regard to the very contention raised by the defendants,
discussed the same in detail. The First Appellate Court having
heard both the sides and taking note of the contention of the
defendants that there is existence of the road, invoked Order
14 Rule 1 of CPC that issues arise when a material proposition
of fact or law is affirmed by one party and denied by the
other. The First Appellate Court also taken note of Order 14
Rule 5 of CPC and comes to the conclusion that the Court may
at any time before passing a decree amend the issues or
frame additional issues on such terms as it thinks fit. Having
taken note of Order 14 of CPC, additional issues were framed
in paragraph No.21 and an observation is made that the Trial
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Court ought to have framed the above said issues placing
burden on defendant No.3 to prove the said defence having
taken note of the defence taken in the written statement. The
First Appellate Court also taken note of the evidence adduced
by the plaintiffs and in paragraph No.25 taken note of the
prayer of the plaintiffs i.e., to declare that the plaintiffs are
the joint owners of the suit schedule property and also to give
direction to the defendants to bring the suit schedule property
to the original status by removing the road and trench i.e., for
mandatory injunction and damages. The First Appellate Court
in detail discussed that when specific defence was taken and
also when earlier suit was filed in O.S.No.140/2013, no such
materials are placed before the Trial Court while considering
the matter and hence remanded the matter to the Trial Court.
Having considered that the Trial Court did not frame the
proper issues, set aside the judgment of the Trial Court and
remanded the matter to the Trial Court for fresh disposal by
giving an opportunity to both the parties to lead further
evidence, if any, on their behalf and also directed to
expeditiously dispose of the same.
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7. Being aggrieved by the said order, the present
M.S.A. is filed before this Court.
8. The learned counsel for the appellants would
vehemently contend that the very remand made by the First
Appellate Court is erroneous and ought not to have framed
the said issues invoking Order 14 of CPC. The learned
counsel contend that the very approach of the First Appellate
Court is erroneous and the Trial Court considered the material
available on record and the same is in violation of Article 300A
of the Constitution of India. Hence, the matter requires
interference of this Court.
9. Per contra, the learned counsel for the
respondents would contend that specific pleading is made that
there is an existence of the road and the same is also
admitted by the plaintiffs while seeking the relief of
possession that road has already been formed. When such
admission is available on record, the Trial Court ought to have
framed the issues and the same was not framed and hence
the First Appellate Court rightly invoked Order 14 of CPC and
framed the additional issues by giving the reasons to remand
the matter in paragraph No.21 and not committed any error
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in framing such issues and in view of the framing of such
issues only, the First Appellate Court directed to consider the
pleadings of the defendants and give a finding and hence it
does not require interference of this Court.
10. Having heard the learned counsel for the
appellants and the learned counsel for the respondents and
also considering the substantial question of law suggested by
the learned counsel for the appellants, the points that arise
for the consideration of this Court are:
(i) Whether the First Appellate Court committed
an error in not appreciating the material
available on record and whether the First
Appellate Court committed an error in invoking
Order 14 of CPC in framing the additional
issues while giving the reasons for remanding
the matter and whether it requires interference
of this Court?
(ii) What order?
Point No.(i):
11. Having heard the learned counsel for the
respective parties and also considering the material available
on record, it is the specific case of the plaintiffs that a road
was formed and earlier it was stopped and thereafter the road
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was formed. Hence, sought for the relief of possession and
also specific case was pleaded that 23 guntas of the suit
schedule property has been utilized for formation of new road.
This 23 guntas of land has been left out and the plaintiffs are
not being able to cultivate this 23 guntas. It is further
averred that in this 23 guntas of land they were getting about
Rs.25,000/- income and hence sought for damages claiming
Rs.25,000/-. The defence of the defendants has been taken
note of in the judgment of the Trial Court in paragraph No.7.
The First Appellate Court also taken note of the pleadings of
the plaintiffs and the defendants. The defendants specifically
pleaded with regard to the very existence of the road and
formation of the road and also specific contention is that the
said road formed in Sy.No.61/2 is formed 30-40 years and it
is meant for the use of public and school children from
Katuwai to Basthikoppa and this road is the link road from
Katuwai to Basthikoppa. A specific pleading was made that in
view of 13th financial project, the road was developed. The
First Appellate Court in paragraph No.20 discussed with
regard to Order 14 Rule 5 of CPC and thereafter only
additional issues are framed. Having framed the additional
issues only considered the material on record and also the
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real dispute between the parties and hence comes to the
conclusion that a definite finding is necessary with regard to
the formation of the road. It is also observed that the earlier
suit in O.S.No.140/2013 records was not placed on record.
The First Appellate Court rightly comes to the conclusion that
the matter requires remand in order to decide the issue with
regard to the very existence of the road, formation of the
road and whether the road was formed long back and in order
to decide the real issue between the parties,.
12. It is important to note that while remanding the
matter, time bound period was given to dispose of the same
within six months by giving an opportunity to both the parties
to lead further evidence. When such order has been passed, I
do not find any error committed by the First Appellate Court
in remanding the matter and framing the additional issues to
consider the real controversy between the parties, since there
is a specific pleading in the written statement with regard to
the existence of the road. The appellants/plaintiffs also not
disputes that there is a dispute with regard to 23 guntas of
the property and also claimed damages and also sought for
possession of 23 guntas from the Trial Court. When such
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pleading was made, I do not find any error committed by the
First Appellate Court in remanding the matter to the Trial
Court. Hence, I answer the point in the negative.
Point No.(ii):
13. In view of the discussions made above, I pass the
following:
ORDER
(i) The M.S.A. is dismissed.
(ii) The Trial Court is directed to dispose of the
matter within three months from 14.07.2025.
(iii) The Registry is directed to send the records
forthwith to the Trial Court to enable the Trial
Court to take up the matter on 14.07.2025.
(iv) The parties are directed to appear before the
Trial Court on 14.07.2025 and assist the Trial
Court in disposal of the matter within the time
bound period as directed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS,MD
