The High Court
Case Details
- 1 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS SECOND APPEAL NO. 178 OF 2024 (RO) BETWEEN: 1. SMT. LATHA W/O KRISHNEGOWDA AGED ABOUT 35 YEARS RESIDING AT NO.22, 1ST CROSS SURYA BAKERY CIRCLE MANCHEGOWDANAKOPPALU MAIN ROAD DEVARAJA MOHALLA MYSURU - 570 001. 2. SRI. KRISHNEGOWDA S/O BETTEGOWDA AGED ABOUT 45 YEARS RESIDING AT NO.22, 1ST CROSS SURYA BAKERY CIRCLE MANCHEGOWDANAKOPPALU MAIN ROAD DEVARAJA MOHALLA MYSURU - 570 001. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA (BY SRI. RAJENDRA KUMAR SUNGAY T.P., ADVOCATE) AND: …APPELLANTS 1. SMT. THAYAMMA W/O LATE JAGGI MADEGOWDA AGED ABOUT 51 YEARS RESIDING AT NO.22 1ST CROSS, SURYA BAKERY CIRCLE - 2 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR MANCHEGOWDANAKOPPALU MAIN ROAD DEVARAJA MOHALLA MYSURU - 570 001. …RESPONDENT
Legal Reasoning
(BY SRI. SRINIVASA D.C., ADVOCATE) THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.11.2023 PASSED IN R.A.NO.40/2022 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN O.S.NO.591/2018 ON THE FILE OF THE VI ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU, DISMISSED THE SUIT FOR EVICTION. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. This matter is listed for admission. Heard the learned counsel for the appellant and also the learned counsel for the respondent. 2. The respondent before this Court filed a suit before the Trial Court in O.S.No.591/2018 seeking the relief of eviction against the defendants, direct the defendants to hand over the vacant possession of the suit schedule property that is room and prevent the defendant - 3 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR perpetually from interfering with peaceful possession and enjoyment of the suit schedule property. 3. It is the case of the plaintiff before the Trial Court that she is the owner of the suit schedule property and constructed a room therein and the plaintiff’s husband was also living with the plaintiff in the parental home of the plaintiff in Mysuru City after the marriage. There were some misunderstanding between the plaintiff and her husband which resulted in decree of divorce. Thereafter, the plaintiff started to live with her father. Originally, the property was belonging to father of the plaintiff by name Madegowda and he has gifted the property in favour of the plaintiff very long back during 1991. It was a vacant site when the father of the plaintiff gifted the property. The plaintiff investing her money constructed a building in the said site. Since the plaintiff is issue less, used to spend her earnings for nephews and nieces. Defendant No.1 is the daughter of plaintiff’s younger sister Smt.Jayamma. Defendant No.1 had much attachment with the plaintiff - 4 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR hence, the plaintiff spent money for the marriage of defendant No.1 held with defendant No.2. 4. It is also her claim that few days of marriage of defendant No.1, defendants came to the plaintiff and requested the plaintiff to permit them to be in portion of the property for some days since there are some misunderstandings between defendant No.1 and mother of defendant No.2. The plaintiff on humanitarian ground permitted the defendants to temporarily stay in a room i.e., in the suit schedule property. Though permission was granted temporarily, the defendants dodged the matter of vacating the schedule room on one or the other pretext. The plaintiff with a humanitarian view, never strongly insisted the defendants to vacate the suit schedule property. But from last one year, the defendants have turned hostile and interfering with the affairs of the property. The defendants started to force the plaintiff to transfer the property in their favour. Therefore, the plaintiff was constrained to withdraw the schedule room. - 5 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR But the defendants refused to vacate the schedule room. Hence, filed the suit. 5. The Trial Court also taken note of the contention of the defendants that the suit schedule property was belonged to the father of the plaintiff by name Jaggimadegowda i.e., the defendant No.1’s grandfather and the said Jaggimadegowda executed an unregistered Will in favour of defendant No.1 and her mother Smt. Jayamma. Thereafter, the defendants have constructed the suit schedule entire house, hence, the question of vacating the suit schedule property does not arise and there is no cause of action. 6. Having considered the pleadings of the parties, the Trial Court framed the issues and also recasted the issues and considering both oral and documentary evidence placed on record, dismissed the suit. 7. Being aggrieved by the dismissal of the suit, an appeal is filed in R.A.No.40/2022 and also filed an application under Order 41 Rule 27 of CPC. The First - 6 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR Appellate Court having considered the grounds urged in the application as well as on merits framed the points for consideration. The First Appellate Court having reassessed the material on record it is observed that the plaintiff claims that the suit schedule property was allotted by way of gift in her favour but no document is placed before the Trial Court for having gifted the property in favour of the plaintiff by the father but some documents are placed before the First Appellate Court i.e., gift deed executed by the mother on 13.12.2019 and the sale deed to show that the portion of the property was sold on 23.12.2019 in favour of one Rakesh.S and same was objected by the appellants herein. 8. The First Appellate Court taken note of the material on record and also considered the grounds urged in the application filed under Order 41 Rule 27 of CPC and also take note of the judgment of the Apex Court reported in AIR 2016 SC 2250 between Muddasant Venkatanarasaiah (D) th. LRs. Vs Muddasani - 7 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR Sarojana wherein the Apex Court held that defendant unable to prove adoption, plea does not prima facie put any cloud over plaintiff’s title. Even in the absence of any suit for declaration, suit for possession simplicitor without seeking the declaration of title is maintainable and also taken note of the fact that defendants have taken the specific defence that there was a Will in their favour and claiming the right based on the Will. The First Appellate Court made an observation that in the absence of Will, the theory of permissive possession is believed by the Trial Court. However, to determine the real fact in dispute, it is necessary to frame issue on the Will based on the plea of the defendants. 9. The First Appellate Court also made an observation that when the defendants also pleaded about the Will, the decision of the Trial Court definitely suffers from infirmity and having taken note of the said fact into consideration, answered the points Nos.1 and 2 as affirmative and remitted back the matter to the Trial Court - 8 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR to consider the same afresh and also while remanding the matter, the First Appellate Court directed the Trial Court to try all the issues afresh along with the issue framed by the First Appellate Court i.e., whether the defendants prove that Jaggimadegowda, grandfather of defendant No.1 executed unregistered Will in favour of defendant No.1 and her mother Smt.Jayamma for suit schedule property though the Will was placed before the Trial Court by the appellants herein and not examined any attested witnesses to prove the Will also. When such reasoning is given by the First Appellate Court, I do not find any error committed by the First Appellate Court in remanding the matter to the Trial Court in view of filing of the application under Order 41 Rule 27 of CPC as well as when specific pleading was made by the defendants that there was a Will in terms of Ex.D2 and also not examined any witnesses to prove the Will and issue was also framed by the First Appellate Court itself while remanding the matter. When such material is available on record, the very contention of the counsel that - 9 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR the plaintiff ought to have proved the case by placing on record the gift deed executed by the father and only on that ground the matter was remanded to consider afresh and said contention cannot be accepted since even First Appellate Court also having taken note of the defense of the defendants/appellants that there was a Will, framed an issue and remitted back the matter to consider the same. 10. The learned counsel for the appellants would vehemently contend that the document of Will, the document of gift deed executed by the mother and sale deed are subsequent to the filing of the suit. In respect of those documents also the Trial Court can consider the material afresh in view of remanding the matter and contention of the appellants’ counsel that those documents came into existence subsequent to filing of suit also kept open for consideration before the Trial Court while considering the matter and the Trial Court can also frame the issue to that effect also. Thus, I do not find any error in remanding the matter by the First Appellate Court to - 10 - NC: 2025:KHC:18872 MSA No. 178 of 2024 HC-KAR consider the same. No ground is made out to set aside the order of remand passed by the First Appellate Court and also framing of an issue regarding specific plea with respect to the Will is concerned and Will also to be proved in respect of the very premises in which the appellants/defendants are in possession of the property. Accordingly, the MSA is dismissed with the above observations. Sd/- (H.P.SANDESH) JUDGE RHS, SN List No.: 1 Sl No.: 33