Smt Uma vs Sri N V Rajachari on 7 June, 2010

[Cites 1, Cited by 8]

Karnataka High Court

Smt Uma vs Sri N V Rajachari on 7 June, 2010

Bench: A.N.Venugopala Gowda

IN THE HIGH COURT OF KARNATAKA AT  

DATED THIS THE 7*" DAY OF 3u1I\t.E,,.u20_1O5.::: .  "

BEFORE

THE HON'BLE MR. JUSTICE_.A.N;".\_/TEN uGQI%AI.,A_v 

MISCELLANEOUS  APPEA-L 'A1k\I01.6é',{2007
BETWEEN: 1 T. ., _ ,

1. Smt. Uma,    I =
W/o. Venk_ataram'ana'Shettyﬁ .
Aged ab_Out}5-O years',  "   

2. Sr;   
    
Aged ab'oTrIt..,62,years. _ '

Both are reVsid"eAnE_dfﬂdoveenabeedé,
Pandax/'apt:ra-_To.wr's«...--¥ 571 434,

; Maandya ©_Ist'rI'c:t. '

 '  V  APPELLANTS

» ;'{-.E3Vy SV'riA.K';S:/;~--Narasimhan, Adv.)

 _  

Sr; , I\E._'.'\'/ . 3' a ch a ri
Since dead by LRS.

    Saraswathi

"W/0. Rajacharé,
Aged about 60 years.

2, Smt. Uma
W/0. Sreemvasacharé,
Aged about 35 years.



Both R/at i-iooveenabeedi,
Pandavapura Town -- 571 434,
Mandya District.

(By Sri S.\/ishwajith Sinetty, Advgfor-.Rg2;--'_4
R1 is served) 3   '

... 'h.ésvi?o,i§ii'opEti'--i'fs" " 

This MSA is fiied under Ord'e_r"'4-3 Rui7é-if(Lj) gr

against the Judgment and D.ei:ree dated' 7,.1.;i.."2,0'O6 passed'
in RA.i\lo.93/2003 on the fife oﬁtiie rm. Ciyiiiiludge (SR.DN)
and JMFC., Srirangapatna, a-i--i-owi-ng'~-.the ap'peal..~and setting
aside the judgment'a_rid discreet"d_avted.,29.10.2OG3 passed
in O.S.No.263/1999 on t'f'1E'.".f.'il,'V':'.':~'Of th_e,C'iV.il 3udge (SR.Di\l)
& 3MFC., Pandavapura,  V  -.

This for"p.'ad-rriission this day, the
Court deiiv'e'r"e_d1~-trh'e fo«iE_o_yvi'ng:--'_  ' r

p    iti'if:"iJUDGMENT

V_ _ This"-MVi'sc._Se(A:*o_npd°i€\ppeal is by the plaintiffs, in a suit

 d,_e.:cle.i.rAation"of""titie with a consequential relief of

' ..i,:n}unction against the defendant, in respect of

 suitpppprroperty bearing Municipal Katha i\lo.811/780,

 mea"3_ur:ing East-West 60 feet and North--South 4 feet,

 v.s,itu_ated at Hooveenabeedi of Pandavapura Town.

2. Piaintiffs' case in a nut sheil is that, 2"" plaintiff
purchased the suit property and the remaining portion

situated on its southern side, totally measuring East--West

9"



60 feet and North--South 36 feet, under a registered sale

deed dated 10.5.1984, from Shaiia Sab and,..,<'iitrie§é.<;,i.feted

since then, they are in actual possession anc§~..enj;io'ymeri1:..of1..

the suit property as absolute :owVne'r':.,  are 7

having a residential houseori the western,."_isi'd'e." U'E1A<El"er"a.,

family arrangement, the pro'peity is mutated  the name
of piaintiff No.1. Ti5e..,'dererid'anj: is-..dwnin'g" the property
towards northern side  the and that the

brother of;the:._:defe=ndan-t': a'iiso'x-io~'w_n_s.7a property on the

westem sfide.'vVa.,nfd.,that"vprop_erty measures East-West 42~
1/2 feetyand   feet. Though the property of

the "clefencia-nthas the said measurement, he has iilegaily

   its extent as 14 feet in the Municipai records,

  the officials, on the basis of which,

p'ermi_"ssi~o«n for construction was obtained and an attempt

 .. was 'made to put up construction over the suit property.

 piaintiffs chaliengecl the issue of building iicence

before the appeilate authority and since the defendant

persisted to put up Construction and inteigere with the

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possession and enjoyment of the suit; property by the

plaintiffs, the suit was instituted for the said reliefs]-._,i_l'~._V

3. The defendant has passed   

have been brought on  7

statement, denying the right, tit'l<e-gland poglssession':.«o'f.,theg

plaintiffs over the suit   Viltlqelnlied the
measurement and bo:u~~n_dari'e's_of't.hei'pyropert'y, as stated by

the plaintiffs. They deniAedi',"th.iat,.--~«t:h'e--'.fg_diei.:eased defendant

had «got--.er?;ter:é1d"-excess "rneasurement in the Municipal
records,'   though the property of the
plalntiffs"-rneaslureiIEa's.t~?West 54 feet and E\lorth~»South 32

the "Vplaintiffs illegally got entered excess

'.-wrne,a's.,u'reVmen--t in their sale deed. They contend that,

i'Ato'wards7f'northern side of the property of the plaintiffs,

therelis a Municipal conservancy i.e., galli, which bifurcates

 n_;t"rie properties of the plaintiffs and defendant. It was

 stated that, the municipal authorities have made correct

entries in the records as per the palupattl in respect of the

property owned by the defendant. \%
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M - -ww-u---ao«~.ii.«7-.~»m»-.-....~»...m..,,,..i,..

4. Based on the pieadings of they'oa'rt'{'e.s,i--.the

teamed triai Judge raised the foiiowing isSu'es::'_~ . 

(i) Whether the pia.intifts..iprovei:t'hat.7th.éi1.i_2"d '

piaintiff is the absoiute owrzer possession;

of the suit sch.ed--iJie pro-pertyf?.'= 
(ii) Whether thVe.------d"efeh~dant groves: that the
piainti'ff.':i'iaAs'.furjnish'e'd- vvrong boundaries and
measure_rhent"_iVnithexsiuit':Vsc"heduie?
(iii)  .~:,,\;/ii':-hettiitger  intiferference is true?
(iv)  ~  t" or'-Id etc-rege?
  for  g3ija';«.ri_'tiff"s,VViV>"if\/s 1 to 3 deposed, through
whond,-. marked. For the i_.Rs. of the

defgendantf l:v\I!S....1 to Vﬁsdeposed and E><s.D1 to D8 were

 n'i:a'rke'd. Keeping' """  view the rivai contentions, after

 the evidence, the iearned triai Judge

an44sweredi"i*.ssue nos. 1 and 3, in the affirmative and issue

 no.2,.in1~the negative and as a resuit decreed the suit.

6. The judgment/decree passed by the triai Court

 " divas questioned by the L.Rs. of the defendant, in a first

appeai, inter»~aiia contending that, piaintiff No.2 has got

mentioned excess measurement in the saie died than the

.L/

.4':



actual area shown in the municipal records; the Tri'a_l"C.ourt

erred in not relying upon Exs.E)1 to D8, so 

the suit} the Trial Court lost sight of the,.A'_:fact'll--l.t:hat 

revision petition filed by the delfendant 

passed by the municipal a.pp_ellate'._a'uthorlW,9.354;. 

as on the date the judgmentl'i'in 'the suit  pronounced;
the Trial Court erredA..4_i'ri-- ncit o.i:iservi,ng.pthat the municipal

authorities have effecte:d'~.,en'tri:es'"on"rti,jieV" basis of actual

measurementqsiﬁin _:i-'esipe'ct property of the
defeilvidantsf'ifgtp_e'«.Triall'-Court erred in not relying upon
palupattiLdatedai'?~:.A9.:_i'9.§'iand the learned trial Judge has

not'c'orrectly'~a_p'p'reci'ated the evidence of DW's 1 to 3 and

  D3 and that the impugned }'udgrnent/ decree is

 _n5o_t«xinéawcvcordaince with the settled principles of law, facts

and prfobatillities of the case,

"if: The first appellate Court having sumirioned the

lurecrords, upon perusal of the same and upon hearing the

--*learned counsel appearing for the parties, raised the

following points for its consideration: L
:x



(i)

(ii)

 in

to

whether the Triai Court  
observing that there is a di_sp,ti't~e.Vvvi.t'ii _re§ia*rd, 

to the measurerﬂ€3int's"'%ﬂ,dother '-'iJzF5Lbz.W:a"ries"'of ii'

the properties of p'a~rti'€s'? _  A T

Whether the*T-ri_ai Court" erred:'in;notnotichingi>

the fact of p'e'n..d'ency o"f~.C'RrPV,: pireferred by
appeiiants aga'i'ristt':theorder"of"Director of

MunujpaiAden@suéupn?»_

Awhethewrv-theeTriaii.,.Co{Jv_rt&:'er'i'ed in not framing
dhtoperissues?"»f--f»,cf

,\iii-iie__ther.j,-

;._the__m_T'i?i»aii.--'Court erred in not

i   ap';3--vre.c'i%ating the orai and
 evidence of both the parties?
 grounds to interfere in the
 reaso'ning"iVand findings of the Triai Court?
I' A' What Order?

  VA-ftier making a brief reference to the respective
cases pt' thieiparties and the evidence, it has held that:--

The Triai Court has erred in not raising proper
issues, in that, materiai issue which ought to
have been raised, casting burden on the
defendant with regard to the existence of gaiii,
has been ieft out; k

,9'

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(2) Though the plaintiffs are certain'.'e4Anpit§g.l?y.-a£5g

contend that their property_..measo're:s

West 60 feet and l\l'o»rith'--'$onith feVe_t}"V"tVhe'>/

have not produced thleynd-nlnicipa'liextyracl:

said property, 's_ta--{rdingA'v~in tth_el"..n'a~rﬂne--.."of; theirs'

vendors; _ 2 _ _

(3) The plaihtiiffts cihaliengedi the entry as
per Ex.P5 l1'lhiuhi::{p;;i ex't.ra..cf,--.which shows the
mea--sVurenfien't-  property as 54
  it    it 

(4)    properly appreciated

 """ "p'oi«'ntsiii~ir};volved ih the case and
V  not properly appreciating the
i' lyora£i..«a'-rid :_4d'ocen1entary evidence of both the

 p_arti,e's. 

i   concltideci that, the matter is a fit case

I  'VVv~¢iheyre.éh«~..§"ri fo-rd'er of remand could be passed to enable the

Trial Cj_'oL;rt7to raise an additional issue as observed in the

 pjtzdgrneint and to give reasonable opportunity to both the
it 'A-_p'ar.t'ies to produce additional evidence and then dispose of

 = ..#the matter afresh in accordance with law. The appeal was

ailowed, the judgment/decree of the Trial Court under

E

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chaiienge was set aside and the suit was  "-thee,»

Trial Court.

9. Sr; K.V.Narasimhan, lvearned cou'n;sel'v a*pp'ea'~rin'g.,,

for the appellants by makin'g,.:"referenceV_ t'o:.ithe1.,4irnVpugnedV

judgment, wouid co.n:t'e.nd _t'h'a't',"vi.,tj4he,"i'learnedvlluvdge of the
Court below has service R.25 of
0.41 CPC,   scope and ambit
and that,7theirel§s."b--reac:Ei::o'f«thiellepgrovisions contained under

Rs.23,"2'3>A,':ana":§,:S' off'~o:;'41 

 in "'res'pAons'e.,.n"JSri Vishwajith Shetty, learned

coujnseii. appe'a.r_ino for the respondents, contended that, in

, view facts, circumstances and record of the case, since ._i':'l'C'.3.gVViie'a}ii,e'dﬂtr'i'al Judge had not raised proper issues and had notlcorrectiy appreciated the crucial points involved in the case and since there was withholding of material "'..e'vs'dence by the plaintiffs, the only course which is "available has been adopted by the Court below and hence no interference is Cailed for.

necessary, remand the case, since the Triai Co.ti_rt"mtajfy'--. . have recorded the evidence on merits of tirie'is-u:i_t,a'nd'--,has aiso not recorded findings on ail the issue's, w_h'i.cVh consideration in the suit.

14. Before remand permissible under precedent laid down therei'n,,V,:ejinus;t and again, the Apex Court' held that, the first appelia'te"'C'o.u}ftV io'a'th'ev§ to exercise its power conferred.' under. of CPC and an order of rernandshoftildenot"V-.be'=_pas'sed routinely. An unwarranted '"'«-ordetof;,_ren:.and giii/e's*"t'he iitigation an undeserved iease of l,_ifean'd th_eir'efo,:re:.,must be avoided. "'*--1st--..Ii' -om R.23-A cpc is not attracted to the instant .caise,_ since the Court below has not arrived at a finding .' that ' a':re--triaI is necessary.

16. 0.41 1"-{.25 CPC, stipuiates that, if it appears to the appeliate court that any fact essential for decision in /t,

-v'!-4'."-N m~r«~»-m.-- ~"'4*v. 4. 17 made the observations ieaving them to be ""

answered by the "mat Court. if theMpiyaintiffs"'t"r'«a:y:e'V"not_ produced reievant evidence or the 'Tria_3"rC'ou1=t_ 'has correctiy appreciated the eviderice'-,..V..it ishnfoxr the",:aAp.p'e-date Court to do its duties, keeping in y;_e'w.:t'r*.e_»proytstons under 515.25, 27, 29 and 31 gem; contention advanced by the ieamved co'u'nset fory."€he..Vapipeiihants 'es wefi founded.

and oftdthey opinion that the

20. 1"T'he1*e§?terA::3:'fy1' % impugned juddmentcannot..b'e..s.ustaEned and hence I pass the foitowjng; L "a MURDER .....

t allowed and the judgment/ order of "'Vr'rema.njd passed in R,A.NO.93/2003 dated 111.2005 by Prl. Civil Judge (snow) and JMFC., by Sruangapatna, stands hereby set aside.

"'R,A.No.93/2003 stands restored to the We of Pri. E Civét Judge (SEEN) and JMFC., Srtrangapatna, for consideration En accordance wéth Eaw. / ~.JA 18 It is made ciear that, if the appeliate Codrériis' -I~ the opinion that a material issue raised and the evidence on reciordwis "i,nsi.:fiiwci'e_ntv'":7 to decide the issue, in that e"v,ent,i siihaii' additional issue, record thei..addit"io.ria§ evid:ei5;c'e.',.,.Ff any, without remitting thvévfriatteriiito:_V"tii'e Trial Court and decide th'e..,_case;"'" * V' 'V V The case of both t'he."Vpa'VrtVie's _,i,,:g~ii'~.i,;_'~,._:.»,,§t'_'_.open for considerationon aE:i_"asVpeVcts, 7 ~ The parties«._aire-'Li-herem/."dire'ct:e'd to appear before the_Covurrt_bei'oyy;on_'5,7A.2QiV0and receive further orders. _A" " .' TheA'C,oLirt b'e!.ow®sh:a'i---i..:'e:s:ifiedite the disposal of the appeai hand"d.ecide'=the"same at the earliest. " . . . . .

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