- 1 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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. 3. SRI. NAGARAJA GOWDA, S/O SRI CHANDRASHEKARAPPA GOWDA, 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, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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: - 3 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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 - 4 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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 - 5 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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. - 6 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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 - 7 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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. - 8 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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 - 9 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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 - 10 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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 - 11 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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 - 12 - HC-KAR NC: 2025:KHC:20626 MSA No. 91 of 2023 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 List No.: 1 Sl No.: 59