Karnataka High Court
Bhimavva W/O Hanamantagouda ... vs Shivanand S/O Nagappa Mulagunda on 21 August, 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 21st day of August, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular Second Appeal 6065 / 2011
Between
Bhimavva, 49 yrs
W/o Hanamantagouda Bharmagoudar
R/o Magadi, Shirahatti Taluk
Gadag District Appellant
(By Sri Rajshekhar Gunjalli, Adv.)
And
1 Shivanand, 64 yrs
S/o Nagappa Mulagunda
2 Ulavappa, 50 yrs
S/o Fakkirappa kundi
3 Manjunath, 43 yrs
S/o Malakajappa Nagavi
4 Muralidhar, 62 yrs
S/o Nagappa Pattar
5 Shivappa, 62 yrs
S/o Mahantappa Shirabadagi
2
6 Ayyappa, 90 yrs
S/o Basavantappa Illager
All are r/o Magadi, Shirahatti Tq
Gadag District
7 Secretary
Gram Panchayat Magadi
Gadag District
8 President
Gram Panchayat Magadi
Gadag District
9 Deputy Commissioner
Gadag
10 Chief Executive Officer
Zilla Panchayat, Gadag
11 Executive Officer
Taluk Panchayat Shirahatti
Gadag District
12 Divisional Controller
NWKRTC, Gadag Division
13 Shivamurtappa Basavantappa Ilager
68 yrs, R/o Magadi, Shirahatti Tq
Gadag District
14 Anasuya W/o Keshappa Ilager
55 yrs, R/o Parasapur
Shirahatti Tq. Gadag District Respondents
(By Sri R H Angadi, Adv. for R1-6, 13,14;
Sri V P Kulkarni, Adv. for R12)
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Second Appeal is filed under S.100, CPC praying to set aside
the order dated 22.11.2011 in RA 83/2009 by the Sr. Civil Judge,
Laxmeshwar.
Second Appeal coming on for Admission this day, the Court
delivered the following:
JUDGMENT
Appeal is by the 6th defendant/land owner challenging the concurrent finding of the courts below. It appears property in question was acquired by the Government and handed over to the Village Panchayat, Magadi for distribution of house sites which was later returned to the defendants. In the meanwhile, some plan was prepared and so far as the purchasers of the plots/plaintiffs are concerned, common suit being filed, order of injunction was granted by the trial court. The same was confirmed by the lower appellate court in appeal. Hence, this second appeal.
Heard the counsel representing the parties.. The grievance of the appellant/defendant is, by resolution when the land has been returned to the defendant, without there being 4 identity as to the sites of the plaintiffs, order of injunction granted cannot be sustained and the same is illegal.
On the other hand, counsel for the respondents submitted, there is boundaries mentioned in the suit schedule as such, there is no error committed by the courts below.
In reply, counsel for the appellant submitted, when individual relief is sought for accepting common court fee, the decree has been passed by the courts below without application of mind which is illegal.
In view of the submissions made, the substantial question of law that arise for consideration is - In a common suit filed when individual relief is sought for on a single court fee and also without there being identity of the boundaries based on the layout plan prepared, whether the courts below were justified in granting an order of injunction.
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If there are records to show that plaintiffs have purchased the property from the Gram Panchayat as is mentioned by them in the sale deed, where exactly out of 6.18 acres this plan was prepared and also whether the common suit by way of a representative suit could be maintained on a single court fee has to be considered.
In that view of the matter, while setting aside the order of the lower appellate court, matter is remitted to the lower appellate court for needful action after affording opportunity to both the parties. The substantial question of law is answered accordingly.
Appeal is allowed. Parties to appear before the court on 10th September, 2014. Send back the records.
Sd/-
Judge An