IN THE wen comm' OF' KARNATAKA AT BANGALORE
Dated the 2491 day of September 2008
;BEFORE: j'e__
'THE HQNBLE MRJUSTICE ; v.JAGANN;4é€1"H«}ésr§.f: 5 _
REGULAR SECOND APPEAL Ne. 11, T' T
BETWEEN :
M.H.Ma11ikaIjunaiah, _ - A ,
S/o Huchaveeraiah, Aged. abo_1_it»?0 yeéxxs,'
Agriculturist, R/0 '~ " ' "
Kasaba I-Iobli, Arasfliere Taiuk-,---- _ "
Hassan District -- 571-2 103.
' --. * ...Appel1a11t
( By_iSri__ A.V;'Gi1r1§g:dha§=a;§§§a,fitieocate. )
AND:
'
S/0 Matatla «Aged about
45 yeézfs; R/<5
Kasaba Hobli, Amsikereffaluk,
Hassan Bi311"ic1:¢-573 103.
= ' " V' V ' ...Resp0ndent
' { Byv B.N.Shivanna, Advocate. )
e Z Appeal filed under Section 100 of the
(A3;'P.C,.'_v'ag.é§i::ist the judgment and decree dated 6.1.2007
R.A.Nc:). I29/2W2 on the fiie of the Civil Judge
. n{Sr...«D11V.) 6:. Add}. C.J,M., Arasikere, dismissing the appeal and
__ the judgment and decree dated 1.10.2001 passed
V' C),S.No. 33/1996 01}. the file of the Add}. Civil Judge
(Jr.D11.), Ara$ikere.
This appeal corazirug on for hearing this day, the court
delivered the faiiowzing :
2
JUDGMENT
This seeonci appeal is by the defendant
trial court and he calls in question
findings of facts of the courts below’ by ‘suit »
the pzamee for declaration in: ‘am :”petti’1afient
injunctiozz against the ‘- to L’
decreed. and the lower _eotirt’ –r:o1i11:’im1ed the
same by dismissing } by defendant.
2. The in that the suit
was ffieé seeking the relief of
deciaifation’ injunefion against the
appe11aIit”” ~herei1’1 on the foundation that he
the of the suit property foliowing the
“father and his father had purchased the
1:1t.<ie1'::e regstered sale deed dated 23.6.1969 and,
eversiiiee the plaintiffs possession of the suit property,
'hejfhas been in enjoyment of the same and when the
_ eppeilant herein tried to interfere with the possession of
the suit property by the plamtifi by making a claim over
the two eeeonut trees and one neem tree, the plaintiff
had to fiie the present suit
%
3. The appeiiant herein denied the above stand of the
plaintiff’ and contended that the neem teas in
existence in his iand but not in the
4. The trial court framed Vfenr issues: _a3:’te’r \
eonsidezing the evidence on reco:jd,..
and 2 in favour of the dee1’eedi._’i:heV L’
the plaintiff as prayed for.’u:The.._viou}er«eppeilate court
confirmed the same appeal preferred
by the defendant.
5. §__Th_e. 1 -the learned counsel for the
apmlanfi &3hri.’15’§,’f»’;4(::i>e{;ii1g’fiadharappa is that both the
c91§1’I’;’:sA. have ~ sight of the fact that the real
between the parties was as to the neem tree
owner of the said neem tree and, though
does not dispute the fact of the suit
., ” being the pmperty belonging to the plaintiztf,
it is the specific: ease of the defendant that the neem
V trm exists not in the pie-33°31fi’ff’s “land but, in the
defendant’s land. Referring to Exs.P-1, [‘.>-1 and D-8,
the submission made is that the neem tree is found in
2
the land which was purchased by the defexxdarrt and,
therefore, the courts below missed the real eoiifftélfifersy
between the parties but, on the other 4_
suit property as the property ‘ 1.
regard to which the parties
the matter requires “to; . real
controversy between-‘ ‘dle this”eoI1eeefion, he
also referred to the passed in
O.S.No. 152.,Ii9e3 of the suit filed
by the 143/ 1994.
6. the learned counsel for the
= I?3.N.Shiva1ma argued that
the does not dispute the ownership of
‘ Viethe by the plaintiff and when the trial
d ‘*oour{‘Vhe§s3–3_det;:reed the suit of the plaintiff insofar as the
the owner and in possession of the same,
~ Argos-..e1ror can be found in the judgment of the trial court:
or in that of the lower appeiiate court and no question of
law also arises for consideration.
%
A
5
7. In the light of the above submissions made, I am
of the View that though the suit was filed by the ‘plaintiff
seeking declaration of title and permanent
against the defendant in respect of the 4, 4′
yet, the res! controversy appears’ to toVIw’1.9io4.’_is the ‘ ; ii
owner of the neem tree in question” ‘i the’
have failed to address this end iiaire ‘feeorded V
any finding in to the”ie.s§-eontroversj; between the
parties. As such, Vqiiesfion of law that
arises for eonsiderafltioii irl is as to whether
the in not adjudicating the
real the parties having regard to
the _oatuee’ the; pieatiings.
e .,iI1he«ei;swer to the above question will have to be in
because, the learned judge of the lower
eourt has clearly stated in paxagaph-13 of his
2 ~ }1i1dog:ment that though no dispute is there between the
“peieties with regard to the suit property Ming the
V’ “absolute property of the plaintifl’ and that the plaintiif is
in possession of the same, yet, the dispute only pertains
to the existence of eight coconut trees and one neem
5/
./
:3
tree in the suit property. In View of the said affirmative
statement made by the lower appellate
regard to the pleadings and the evidence
was but expected of the lower
decided the real controversy between t–i1*1d”‘3.1_ot
merely declaring that the to L’
plaintiff in regard to do not
dispute. V A l V
9. Therefore; we to the trial
eourt so eohttoversy between the
tree in question and hence,
I pass
lV’l’he allowed and the judwzents of the
‘ _eeurtsv ‘t:e§ov’v set aside and the matter is remanded
to decide the real controversy between
the perfies viz, as to the ownership over the neem tree
~ question, is concerned and after affordizzg mm sides
lopportunity in this regard, the trial court shall proceed
to dispose of the matter within a period of three months
from the date of this judgment and both the parties
9/
\)
shall co-aperate in this regard and they shall appear
befere the tria} court on 2 1.10.2008.
The records be sent Back to the
foithwith.
eke] «-