The High Court
Case Details
- 1 - NC: 2025:KHC:23796 RSA No. 973 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 973 OF 2025 (POS) BETWEEN: SRI SURESH KAMATH, SINCE DECEASED, 1. SMT. PRATHIMA KAMATH AGED ABOUT 54 YEARS, W/O LATE SURESH KAMATH 2. SRI SACHIN KAMATH AGED ABOUT 29 YEARS, S/O LATE SURESH KAMATH
Legal Reasoning
Having perused the records, it is clear that suit was filed on 17.04.1990. The relief is sought for possession and the
Arguments
3. SRI SAURAV KAMATH AGED ABOUT 26 YEARS, S/O LATE SURESH KAMATH ALL ARE RESIDING AT A-806, MANDAVI EMERALD SHIVALLI VILLAGE MANIPAL - 576 104, UDUPI TALUK (BY SRI. K CHANDRANATH ARIGA, ADVOCATE) …APPELLANTS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:23796 RSA No. 973 of 2025 HC-KAR AND: IMMACULATE CONCEPTION CHURCH (ALSO KNOWN AS COSSESSAM CHURCH) SITUATED AT KINNIGOLI, REPRESENTED BY ITS PRIEST 1. PARISH PRIEST VERY REV. FR. ALOYSIUS ROSARIO, NOW REV. FR. STANY TAURO AND NOW REV. FR. JOHN SALDANHA, AGED ABOUT 81 YEARS, NOW BY VINCENT MONTERO, S/O RAYMOND MONTERO, PARISH PRIEST OF IMMACULATE CONCEPTION CHURCH, KINNIGOL - 574 150. 2. ADMINISTRATOR JOHN D’SOUZA S/O LATE MARCEL D’SOUZA, NOW JOSEPH QUADRAS, NOW JEMOME MORAS, NOW BY MR. VINCENT VINODHU D’SOUZA ADMINISTRATOR OF IMMACULATE CONCEPTION CHURCH, KINNIGOLI, BOTH ARE RESIDING IN THALIPADY VILLAGE, POST: KINNIGOLI - 574 150, MANGALORE TALUK. 3. VASUMATHI AGED ABOUT 66 YEARS 4. SMT. PARVATHI AGED ABOUT 64 YEARS 5. SRI GANESH AGED ABOUT 62 YEARS - 3 - NC: 2025:KHC:23796 RSA No. 973 of 2025 HC-KAR 6. SMT. SUDHA AGED ABOUT 60 YEARS 7. SRI PRAKASH AGED ABOUT 53 YEARS 3 TO 7 ARE THE CHILDREN OF LATE GOPALAKRISHNA KAMATH RESIDING AT GUNDALA HOUSE, MANNEBETTU VILLAGE, POST: KINNIGOLI - 574 150, MANGALORE TALUK, D.K.DISTRICT. 8. PARISH PRIEST FR. ALFRED G. PINTO ADULT, S/O LOUIS PINTO IMMACULATE CONCEPTION CHURCH, KINNIGOLI - 574 150, D.K. 9. ADMINISTRATOR MR. LIONEL PINTO S/O LATE CHARLES PINTO, PINTO LAYOUT, OPP: SYNDICATE BANK, KINNIGOLI - 574 150. …RESPONDENTS (BY SRI. CYRIL PRASAD PAIL, ADVOCATE FOR R1 AND R2) THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.03.2025. PASSED IN R.A.NO.52/2023 AND 53/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MOODABIDRI, D.K. PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 23.02.2024 PASSED IN O.S.NO.230/1990 ON THE FILE OF III ADDITIONAL CIVIL JUDGE (Jr. Dn) AND JMFC, KARKALA. - 4 - NC: 2025:KHC:23796 RSA No. 973 of 2025 HC-KAR THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for consideration of I.A1/2025 for stay. 2. Heard the learned counsel appearing for the appellant and learned counsel appearing for the respondent. 3.
Decision
suit was disposed of on 23.02.2004 and thereafter appeal was filed and appeal was respondent-numbered and ultimately the appeal was disposed of on 15.03.2025. 3. Learned counsel appearing for the appellant would vehemently contend that though there is a concurrent finding but property description is not properly mentioned and hence, this court has to admit the appeal. Learned counsel also does not dispute the fact that Commissioner was appointed before the appellate court in view of the direction given by this court - 5 - NC: 2025:KHC:23796 RSA No. 973 of 2025 HC-KAR in writ petition while disposing of the same. The Commissioner has also given the report and the appellate court while modifying the judgment partly decreed the suit with a particular description and this order has been challenged before this court. 4. Learned counsel appearing for the respondent would contend that the respondent is struggling from 1990 i.e., almost 35 years have been elapsed by filing the suit for relief of possession and though the suit was disposed of on 2004, R.A. was pending from 2005 and later on, it was re-numbered and the present R.As are disposed of with a direction to hand over the possession and made an attempt to take possession for 3 1/2 decade and have filed the Regular Second Appeal. 5. In response to this, learned counsel for the appellant would contend that they have already filed execution petition and ordered to deliver the possession and police help is sought, but not yet executed. - 6 - NC: 2025:KHC:23796 RSA No. 973 of 2025 HC-KAR 6. Having heard the learned counsel for the appellant and also learned counsel for the respondent and also considering the fact that the suit is of the year 1990 for seeking the relief of possession and the trial court granted the relief and the same is modified by the appellate court with a direction to deliver the vacant possession of the premises bearing door No.K-8-79 of Kinnigoli Town Panchayath existing in Sy.No.123/1 of Thalipady Village, Mangaluru to the plaintiff - church and also made it specific that they shall vacate the only premises situated in Sy.No.123/1 (now Sy.No.123/1A1) shown in sketch filed by the Commissioner dated 09.07.2024 and specifically identified within 60 days. It is important to note that when the writ petition was filed, an application was filed to appoint a Commissioner and accordingly a Commissioner was appointed and he has also given the report and in terms of the said report, the order has been passed by the appellate court. When such being the case, I do not find any error in the order passed by the appellate court as the same is also based on the Commissioner's report. When this court found that there is no merit in the matter, at this juncture, learned counsel for the appellant - 7 - NC: 2025:KHC:23796 RSA No. 973 of 2025 HC-KAR submits that they are running the hotel in the premises and 7 months time may be granted. Taking into consideration that the parties have fought more than 3 1/2 decade, granting of 7 months time as sought for can be considered subject to filing of the affidavit by the appellants before this court within one week from today with an undertaking that they will vacate the premises without seeking any further extension of time. In view of the above discussion, I pass the following: O R D E R (i) The appeal is dismissed. (ii) The appellants are directed to vacate the premises within 7 months from today and also file an undertaking affidavit before this court within one week that they would vacate the premises without seeking any further extension of time. (iii) The appellants are directed to pay the mesne profits as ordered by the trial court within two months from today and the same shall also be narrated in the affidavit with an undertaking that the amount will be paid within two months. If - 8 - NC: 2025:KHC:23796 RSA No. 973 of 2025 HC-KAR such affidavit is not filed before this court, the appellants will not enure the benefit of this order. Sd/- (H.P.SANDESH) JUDGE SS List No.: 1 Sl No.: 38 CT: BHK