Karnataka High Court
G Shivalingaiah vs V K Thejaswini on 11 March, 2025
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MSA No. 92 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS SECOND APPEAL NO. 92 OF 2023
(RO)
BETWEEN:
G.SHIVALINGAIAH
S/O LATE NINGAIAH
AGED ABOUT 68 YEARS,
R/AT NO 665, 3RD CROSS,
ARKESHWARANAGAR, GUTHALU POST,
MANDYA CITY - 571 403
...APPELLANT
(BY SRI. K.L. SREENIVAS, ADVOCATE)
AND:
V.K.THEJASWINI
D/O V.C.KARADIGOWDA
AGED ABOUT 51 YEARS
Digitally R/O THYLOOR VILLAGE,
ATHGUR HOBLI, MADDUR TALUK
signed by
MANDYA DISTRICT - 571 428
SUVARNA T ...RESPONDENT
Location: (BY SRI. K.K.VASANTH, ADVOCATE)
HIGH
COURT OF THIS MSA FILED UNDER ORDER 43 RULE 1(U) R/W SEC.100
KARNATAKA OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.03.2023
PASSED IN RA NO.14/2021 ON THE FILE OF ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, MADDUR, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DATED 20.01.2021
PASSED IN OS NO.86/2016 ON THE FILE OF IV ADDITIONAL CIVIL
JUDGE AND JMFC AT MADDUR AND THE MATTER IS REMANDED TO
THE LEARNED TRAIL COURT UNDER ORDER XLI RULE 23-A OF CPC
FOR RETRIAL AND DISPOSAL AFRESH IN ACCORDANCE WITH LAW
BY READMITTING THE SUIT UNDER ITS ORIGINAL NUMBER IN THE
REGISTER OF CIVIL SUITS.
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MSA No. 92 of 2023
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
The present appeal is filed aggrieved by the judgment and
decree passed in R.A.No.14/2021 dated 28.03.2023 by the
Addl. Senior Civil Judge and JMFC, Maddur whereby, the
Appellate Court had set aside the judgment and decree passed
in O.S.No.86/2016 dated 20.01.2021 by the IV Addl. Civil
Judge and JMFC at Maddur and remanded the matter for fresh
consideration.
2. The brief facts of the case are that the plaintiff had
filed the suit for relief of declaration. The plaintiff is the
absolute owner of the suit schedule 'A' property and for
perpetual injunction to direct the defendant to pay damages of
Rs.75,000/- together with interest at 5% per annum and for
such other reliefs. It is the case of the plaintiff that the suit
schedule 'A' property was purchased by her grandfather in the
year 1972. Since then he was in possession and enjoyment of
the property. After his death, father of the plaintiff was in
possession and enjoyment of the same and subsequent to
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death of her father, the plaintiff has been in possession and
enjoyment of the property. The defendant had purchased 45
guntas on southern side of the same survey number from the
same owner during 1985. In the said survey number there was
about 04 guntas kharab land reserved for road. But, the
defendant in collusion with the revenue officials got mutated
the said 04 guntas of kharab into his name including the same
in the 45 guntas purchased by him and created revenue
documents for 50 guntas. It is his case that the encroached
portion is shown as suit schedule 'B' property and in the said
encroached portion, the defendant had dug and removed the
fertile soil to construct poly house/green house. Thereby, the
defendant has caused damage to the plaintiff and accordingly,
she had come up with the suit. The defendant had filed the
written statement and denied the case of the plaintiff. He had
admitted as far as the ownership of the plaintiff with regard to
suit schedule 'A' property, but as far as the suit schedule 'B'
property is concerned, he has relied on the same. During the
pendency of the suit, the plaintiff had filed I.A.No.12 seeking to
amend the prayer by deleting the prayer portion (B) and it is
prayed to add in its place as "Consequent upon such
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declaration, to grant the decree of possession directing the
defendant to handover the vacant possession of suit schedule
'B' property to the plaintiff" and also to amend Survey
No.40/1A in suit schedule 'A' property as Survey No.40/1A2
and the defendant had filed his objections. The Trial Court had
partly allowed I.A.No.12 permitting to amend the Survey
No.40/1A in suit schedule 'A' property as Survey No.40/1A2,
had rejected the prayer to delete prayer portion (B) and to add
the relief of decree of possession. The plaintiff had not
questioned the said order passed by the Trial Court in
I.A.No.12. Thereafter, the Trial Court after a full-fledged trial
had held that the plaintiff had proved the encroachment by the
defendant over the suit schedule property of the plaintiff. Then,
when it comes to the damages, plaintiff is entitled for the
damages worth Rs.75,000/- and also for the relief of
permanent injunction against the defendant and accordingly,
the Trial Court had passed the judgment by decreeing the suit.
Aggrieved thereby, the defendant had preferred R.A.
No.14/2021. The Appellate Court had remanded the matter.
The reasons for remanding the matter by the Appellate Court is
that the Trial Court had wrongly rejected I.A.No.12 filed by the
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plaintiff seeking to include the relief of possession by way of
amendment, which was necessary for the purpose of
determining the real questions in controversy between the
parties. The suit of the plaintiff without seeking the relief of
possession is not maintainable, it is not proper to dismiss the
suit as her application for amendment to include such a relief
has been erroneously rejected by the learned Trial Court Judge.
It is also observed that without permitting such an amendment,
the Trial Court could not have proceeded to pass the impugned
judgment and decree. Therefore, the circumstances and the
principles of justice mandate that the plaintiff should be given
an opportunity to include the relief of possession, which can be
done only by remanding the matter for retrial as such inclusion
of the relief of possession, would entail framing of appropriate
issues and adducing the additional evidence and accordingly,
remanded the matter by setting aside the judgment and decree
passed by the Trial Court. Aggrieved thereby, the defendant is
before this Court by filing the present appeal.
3. Learned counsel appearing for the appellant/
defendant submits that when the finding with regard to
I.A.No.12 has attained finality and the same was not
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questioned by the plaintiff, the observation of the Appellate
Court that the Trial Court ought to have allowed the application
and ought to have allowed the amendment is contrary to law
and beyond the scope of the appeal, the Trial Court has gone
beyond the jurisdiction conferred and the Appellate Court had
remanded the matter. It is submitted that the reasons given for
remanding the matter are not well considered and the order
needs to be set aside.
4. Learned counsel appearing for the respondent/
plaintiff submits that the Trial Court had rightly remanded the
matter looking at the substantial interest of the parties and no
prejudice will be caused to the appellant, if the appeal is
remanded and an order is passed on the merits of it. He
submits that no interference is called for with the impugned
order passed by the Appellate Court.
5. Having heard the learned counsels on either side,
perused the material on record. Initially, the suit was filed for
declaration and for damages. According to plaintiff, she is the
owner of the suit schedule 'A' property and suit schedule 'B'
property is the one which is encroached by the defendant.
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Then, I.A.No.12 is filed seeking to amend the prayer i.e.,
seeking the recovery of possession and also to amend the
survey number. The Trial Court had partly allowed the same by
permitting him to amend the survey number, but when it
comes to the recovery of possession, that was dismissed by the
Trial Court. For the best reasons known to the plaintiff, the
plaintiff had not questioned the said order and the order passed
by the Trial Court in I.A.No.12 had attained finality. Thereafter,
the Trial Court had passed the judgment and decree whereby
the suit is decreed as prayed for by the plaintiff. When the
defendant had carried the matter in appeal, the Appellate Court
ought to have looked at the legality or otherwise of the
judgment and decree. Instead of that the Appellate Court had
gone to the aspect whether the order passed in I.A.No.12 is
legal or not and the Appellate Court has come to the conclusion
that unless and until I.A. is allowed, injustice will be caused to
the plaintiff and at that stage, remanded the matter. In the
considered opinion of this Court, such exercise done by the
Appellate Court is contrary to law. When the plaintiff had an
opportunity to question the order passed in I.A.No.12, when he
has not chosen to question the same, the Appellate Court ought
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not to have gone into the aspect and the Appellate Court ought
to have looked at the merits of the judgment and decree and
ought to have passed an order. In that view of the matter, this
Court deems it appropriate to pass the following:
ORDER
i. The order impugned in R.A.No.14/2021 dated
28.03.2023 by the Addl. Senior Civil Judge and
JMFC, Maddur is set aside and the order of the
Trial Court is restored.
ii. The Appellate Court shall decide the appeal on
the merits of it.
iii. The parties are at liberty to raise all the
grounds/ objections/ cross objections if any
before the Appellate Court.
iv. The appeal is disposed of.
v. All I.As., in the appeal shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
