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2025 DAILYLAW 40777 (KAR)

MRS ESTHER MARGARET v. SRI GURULINGAPPA B MADA

RSA/1567/2016 · 2025-09-09

E S Indiresh

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 1567 OF 2016 (DEC/INJ) BETWEEN: MRS ESTHER MARGARET W/O MR.KANNAIAN MOSES, SINCE DEAD BY HER LRS, 1(A) G.KANNAIAN MOSES, AGED ABOUT 71 YEARS, S/O GOVINDARAJ, HUSBAND OF APPELLANT, GPA HOLDER OF APPELLANT NOS. 1(B) TO 1(E) 1(B) PRASHANNAL KUMARI, AGED ABOUT 42 YEARS, D/O G.KANNAIAN MOSES, 1(C) PRIEST MESHACH AGED ABOUT 39 YEARS, S/O G.KANNAIAN MOSES, 1(D) ISSAC AGED ABOUT 37 YEARS, S/O G.KANNAIAN MOSES, 1(E) REEBACCA AGED ABOUT 35 YEARS, D/O G.KANNAIAN MOSES, BOTH RESIDING AT D.NO.3-130/7, THODLU GUDDE, KAVOOR CROSS, (M CORP. +OG), Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 MANGALORE,, DAKSHINA KANNADA, KARNATAKA- 575 015. …APPELLANT (BY SRI. PRABHUGOUD B TUMBIGI., ADVOCATE) AND: SRI GURULINGAPPA B MADA S/O BEEMAPPA AGED ABOUT 55 YEARS RESIDING AT THODDEL KUNJATHBAIL MANGALORE-575015 MANGALORE TALUK …RESPONDENT (BY SRI. CYRIL PRASAD PAIS., ADVOCATE) THIS RSA IS FILED UNDER SEC.100 R/W ORDER LXII RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.04.2016 PASSED IN R.A.NO.106/2013 ON THE FILE OF III ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.11.2013 PASSED IN O.S.NO.22/2007 ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE, MANGALORE, D.K. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the plaintiff, assailing the judgment and decree dated 27.04.2016 in R.A.No.106/2013 on the file of III Additional District and - 3 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 Sessions Judge, Mangaluru, D.K., (for short, hereinafter referred to as "First Appellate Court") allowing the appeal and setting aside the judgment and decree dated 19.11.2013 in O.S.No.22/2007 on the file of II Additional Senior Civil Judge, Mangaluru, D.K., (for short, hereinafter referred to as "Trial Court") decreeing the suit of the plaintiff in part. 2. For the sake of convenience, the parties in this appeal are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that, plaintiff is the absolute owner in possession of the suit 'A' Schedule Property, having acquired the same as per the registered Sale Deed dated 28.07.2001. It is stated in the plaint that, the defendant is owner of 2.5 cents in the land bearing Survey No.58/1 situated on the western side of the 'A' Schedule Property. - 4 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 4. It is further stated that the plaintiff and her husband are residing at Kudre Township, Kavur, Mangaluru. It is also stated that during January - 2006, the defendant has interfered with the suit schedule property and has illegally constructed the structure by encroaching the suit property and as such, the plaintiff has lodged a complaint before the Jurisdictional Police. Thereafter, the defendant was advised to conduct a joint survey in respect of the property belonging to the plaintiff and defendant. A joint survey was conducted on 18.01.2006 and report of the survey would indicate that the defendant has put up illegal construction in 'A' schedule property belonging to the plaintiff. Thereafter again, the defendant tried to encroached the portion of 'A' Schedule Property and has put-up construction. Hence the plaintiff has filed O.S.No.22/2007, seeking relief of declaration with consequential relief of mandatory injunction and also sought for relief of permanent injunction. - 5 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 5. After service of notice, the defendant entered appearance and filed written statement denying the averments made in the plaint. It is the specific case of the defendant that, defendant has filed O.S.No.49/2006 before the Trial Court seeking relief of permanent injunction, and the said suit came to be decreed. Accordingly, the defendant has sought for dismissal of the suit. 6. Based on the pleadings on records, the Trial Court has framed issues for its consideration. 7. In order to establish their case, the plaintiff has examined three witnesses as PW.1 to PW.3 and got marked 13 documents as Exs.P1 to P13. On the other hand, defendant has examined two witnesses as DW.1 and DW.2 and got marked 6 documents as Exs.D1 to D6. The Commissioner was examined as PW.3 and marked the report of the Commissioner as Ex.C.1 and Ex.C1(a). 8. The Trial Court, after considering the material on record, by judgment and decree dated 19.11.2013, - 6 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 decreed the suit in-part. Being aggrieved by the same, the defendant has preferred R.A.No.106/2013 before the First Appellate Court and the same was contested by the plaintiff. The First Appellate Court, after re-appreciating the material on record, by judgment and decree dated 27.04.2016, allowed the appeal and set-aside the judgment and decree passed by the Trial Court except the judgment and decree in respect of damages claimed by the plaintiff and as such, relief of damages claimed by the plaintiff remained unchanged. Feeling aggrieved by the same, the plaintiff has preferred this appeal. 9. This Court by order dated 29.08.2018, formulated the following substantial question of law; "Whether the Lower Appellate Court was right in reversing the finding that the defendant's property is adjacent to Schedule 'B' in the light of Ex.C1(a)?" - 7 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 10. Heard Sri.Prabhugoud B. Jumbigi, learned counsel appearing for the appellants and Sri.Cyril Prasad Pais, learned counsel appearing for the respondent. 11. Sri.Prabhugoud B. Jumbigi, learned counsel appearing for the appellants contended that, the First Appellate Court has committed an error in interfering with the well reasoned judgment and decree passed by the Trial Court. In this regard, learned counsel appearing for the appellants invited the attention of the Court to the finding recorded by the First Appellate Court at paragraph No.24 and submitted that the First Appellate Court has misconstrued the document filed by the plaintiff and arrived at a conclusion that the properties belonging to the plaintiff and defendant are existing in different survey numbers and the said finding recorded by the First Appellate Court requires to be interfered with in this appeal. 12. By referring to the cross-examination of PW.1 dated 17.02.2011, learned counsel appearing for the - 8 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 appellants submitted that the First Appellate Court has committed an error in allowing the appeal in-part and accordingly sought for interference of this Court. 13. Per contra, Sri.Cyril Prasad Pais, learned counsel appearing for the respondent, sought to justify the impugned judgment and decree passed by the First Appellate Court. In light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. 14. Perusal of the finding recorded by the Trial Court would indicate that the plaintiff has acquired the `A` Schedule Property as per the registered sale deed dated 28.07.2001. It is the case of the plaintiff that the property belonging to the defendant is situated on the western side of the 'A' Schedule Property. The said aspect of the matter was not disputed by the defendant being a neighbour of the plaintiff. The Trial Court, by judgment and decree dated 19.11.2013 declared that the plaintiff is the owner of the 'A' and 'B' Schedule Property and arrived at a - 9 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 conclusion that, the defendant has encroached the 'B' Schedule Property. In this regard, I have carefully examined the evidence of PW.1 dated 17.02.2011. The plaintiff himself has admitted that the property belonging to defendant is situated adjacent to the plaintiff. In that view of the matter, on careful examination of the finding recorded by the First Appellate Court at paragraph-24, wherein the First Appellate Court has arrived at a conclusion that the properties of the plaintiff are situated different place and having different survey numbers and are not adjacent to each other. The said finding made by the First Appellate Court is contrary to the records. It is the case of the plaintiff and defendant that they are not the neighbors in respect of the suit schedule properties. In that view of the matter, the First Appellate Court has committed an error in not reassessing the evidence of the parties and given a finding on each of the issues framed by the Trial Court in O.S.No.22/2007. - 10 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 15. It is also to be noted that the First Appellate Court has not re-appreciated the material on record and arrived at a conclusion that the plaintiff and defendant are not the owners in respect of the respective subject land and also not situated adjacent to each other. Therefore, I am of the view that the First Appellate Court has not properly reassessed or re-appreciated the material record as required under Order XLI Rule 31 of CPC. In that view of the matter, following the declaration of law by the Hon'ble Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari1. I am of the view that, the First Appellate Court has not assessed the evidence on record being a First Appellate Court to be given a finding on the material on record. Therefore, I find force in the submission made by the learned counsel appearing for the appellants, and it is a fit case to remand the matter to the First Appellate Court to reassess the evidence on record afresh as required under Order XLI of the Rule 31 of CPC 1 AIR 2001 SC 965 - 11 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 and to given finding on each of the issues. In the result, I pass the followings; ORDER i. The appeal is allowed. ii. The judgment and decree dated 27.04.2016 in R.A.No.106/2013 on the file of III Additional District and Sessions Judge, Mangaluru D.K., is hereby set aside and the matter is remitted back to the First Appellate Court to re-appreciate the material on record as required under Order XLI of the Rule 31 of CPC. iii. Since the parties are represented through their learned counsel, in order to avoid further delay in the matter, parties are directed to appear before the First Appellate Court on 13.10.2025 at 11 a.m. iv. After appearance of the parties, the First Appellate Court is requested to expedite the hearing. v. All the contentions of the parties are kept open. - 12 - HC-KAR NC: 2025:KHC:36069 RSA No. 1567 of 2016 vi. It is also open for the First Appellate Court to consider I.A.No.1/2023 filed by the appellants herein before this Court under Order XLI Rule 27 of CPC and to give a finding on the said application also. SD/- (E.S.INDIRESH) JUDGE TIN List No.: 1 Sl No.: 49