Sri Boregowda vs Sri N Thimme Gowda on 2 January, 2014

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Karnataka High Court

Sri Boregowda vs Sri N Thimme Gowda on 2 January, 2014

Bench: S.N.Satyanarayana

                          -1-



     IN THE HIGH COURT OF KARNATAKA AT BANGALORE

        DATED THIS THE 2ND DAY OF JANUARY 2014

                        BEFORE

      THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA

             R.S.A No.2094/2011 (DEC & INJ)

BETWEEN:

SRI BOREGOWDA,
S/O LATE NANJEGOWDA,
AGED ABOUT 76 YEARS,
R/O AGACHANAHALLI VILLAGE,
BELLUR HOBLI,
NAGAMANGALA TALUK,
MANDYA DISTRICT - 571 418.           ...APPELLANT.

(BY SRI C.R. GOPALASWAMY, ADV.,)


AND

1.     SRI N.THIMME GOWDA,
       S/O LATE SRI NANJEGOWDA @
       KULLEGOWDA,
       AGED ABOUT 83 YEARS,

2.     SRI T.PUTTASWAMY GOWDA,
       S/O SRI N.THIMME GOWDA,
       AGED ABOUT 47 YEARS,

3.     SMT. LAKSHMAMMA,
       W/O SRI SUBBE GOWDA,
       AGED ABOUT 75 YEARS,

       ALL ARE RESIDENTS OF
       AGACHANAHALLI VILLAGE,
                           -2-



     BELLUR HOBLI,
     NAGAMANGALA TALUK,
     MANDYA DISTRICT - 571 418.
                                   ...RESPONDENTS
(BY SRI H.B.CHANDRASHEKAR, ADV., FOR R1 AND R2,
    R3 IS SERVED & UNREPRESENTED)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 23.6.2011
PASSED IN R.A.NO.99/2008 ON THE FILE OF ADDITIONAL
DISTRICT JUDGE, MANDYA, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 19.9.2008
PASSED IN O.S.NO.163/2006 ON THE FILE OF CIVIL JUDGE
(SR.DN), AND JMFC., NAGAMANGALA.


    THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

The first defendant in O.S. No.163/2006 on the file of the Civil Judge (Sr. Dn.) & JMFC., Nagamangala, has come up in this second appeal impugning the judgment and decree dated 23.06.2011 passed in R.A. No.99/2008 on the file of the Addl. District Judge, Mandya, wherein, the lower appellate Court after reframing the issues, has failed to give sufficient opportunity to the parties to adduce evidence on the additional issues, which were -3- framed during the pendency of the appeal in R.A. No.99/2008.

2. Admittedly, the suit in O.S. No.163/2006 was filed by plaintiff Nos.1 and 2, who are respondent Nos.1 and 2 herein for the relief of declaration and injunction with reference to property bearing Sy.No.25 (new Sy.No.94) of Agachahalli village, Bellur Hobli, Nagamangala Taluk, Mandya District contending that an extent of 8 Guntas and 22 Guntas as described in Schedules 'B' and 'C' respectively to the suit has been encroached by defendant No.1. It is seen that the said suit is decreed by judgment and decree dated 19.09.2008 by the Civil Judge (Sr. Dn.) & JMFC., Nagamangala. However, in the Regular Appeal filed by defendant No.1 in the original suit, namely, Boregowda, the lower appellate Court, in addition to the issues which were already framed by the trial Court, has framed another seven issues to be decided in the appeal. It is also observed by the lower appellate Court in its judgment at para 28 to the effect -4- that during the course of further arguments, Counsels have not pressed for adducing any evidence though reframing of issues was brought to their knowledge. However, the order sheet maintained by the lower appellate Court does not support this observation.

3. In that view of the matter, learned Counsel appearing for both sides concede that no opportunity was given to either of the parties to adduce evidence on the issues, which were recasted by the lower appellate Court while deciding R.A. No.99/2008, which was filed by defendant No.1 in O.S. No.163/2006.

4. Hence, the present appeal filed by defendant No.1 - Boregowda is hereby allowed. The judgment and decree dated 23.06.2011 passed by the Addl. District Judge, Mandya, in R.A. No.99/2008 is set aside. The matter is remanded back to the lower appellate Court with the following observations:

"The original records being returned to the lower appellate Court, the lower -5- appellate Court shall send the entire records to the trial Court i.e., the Court of Civil Judge (Sr. Dn.) & JMFC., Nagamangala, with a direction to record the evidence of the plaintiffs and defendants on issue Nos.1 to 7 as recasted by the lower appellate Court at page 23 of the judgment in R.A. No.99/2008 and secure the evidence from the trial Court on the said seven recasted issues and thereafter, shall hear the appellant and respondents in R.A. No.99/2008 and dispose of the same after framing appropriate points for consideration in the said appeal.

It is also made clear that the entire exercise shall be completed by the lower appellate Court within nine months from the date of receipt of records from this Court."

Sd/-

JUDGE Sma

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