IMPORTANT POINT
The court established that a suit filed by an aggrieved property owner does not require conversion into a representative suit under the CPC when the claim is specific to the owner's rights.

JUDGMENT :

V. Srishananda, J.

Heard Sri K. Ravishankar, learned counsel for the appellants and Sri Aashish Ram, appearing on behalf of Sri Krishnamurthy D., counsel for the respondents.

2. Second appeal is filed by the plaintiff in O.S.No.15/1997, on the file of Civil Judge (Jr.Dn) and JMFC., Sullia, Dakshina Kannada, challenging the order passed in R.A.No.119/2005, dated 02.07.2018, on the file of Senior Civil Judge and JMFC., Sullia, Dakshina Kannada, whereunder the judgment and decree passed in O.S.No.15/1997 set aside the matter was remitted to the Trial Court.

3. Facts in brief which are utmost necessary for disposal of the second appeal are as under:

Plaintiff filed a suit for declaration that defendant Nos.1 to 4 and other public have got right only as a permissive users in respect of the pathway situated three feet width, running from South to North which is in the plaint schedule property and has got the length of 324 links, touching the Western Boundary line of the plaint ‘A’ schedule property which is situated in Sy.No.162/2B, adjoining the land bearing Sy.No.160 of Kollamogru village and defendants and others have no rights whatsoever to interfere or widen the said pathway without the consent of the plaintiff and consequential relief.

4. The suit was contested and suit came to be decreed as under:

“The suit of the plaintiffs is decreed with costs as follows:

It is declared that the defendants no.1 to 4 have right only as permissive users to use the pathway of six to feet in width to the Eastern side of the mud compound wall running from South to North parallel to the mud compound wall near and along the Western boundary line of the plaint 'A' schedule property in sy.no.162/28 adjoining the mud compound wall and the defendants or persons claiming through or under them have no right to form or widen the said pathway in the plaint 'A' schedule property without the consent of the plaintiffs.

The defendants or persons claiming through or under them are restrained by way of permanent prohibitory injunction from interfering with the peaceful possession and enjoyment of the plaint 'A' schedule property.

The defendants are directed by way of mandatory injunction to restore to its original position the said pathway of six feet in width to the Eastern side of the mud compound wall running in North-South direction in the Western boundary line of the plaint 'A' schedule property parallel to the mud compound wall situated on the West of the said pathway.

The suit of the plaintiff claiming declaration against the public is dismissed.”

5. Being aggrieved by the said, defendants No.1 to 4 filed an appeal before the District Court which is numbered as R.A.119/2005.

6. The learned Judge in the First Appellate Court secured the records and heard the parties in detail. Thereafter, allowed the appeal as under :

“The appeal filed by the appellant u/s 96, Order 41, Rule 1 of C.P.C. is hereby allowed.

In the result the judgment and decree passed by the trial court in O.S.No.15/1997 is hereby set aside.

The matter/suit is remanded to the trial court and it is directed to issue notice to the general public as contemplated u/o 1, rule 8 of CPC calling upon the interested persons to file their written statement/objections and there after frame the issues and permit the public to lead evidence and permit the parties to lead evidence on their side and also permit the appellants herein to mark the documents which are produced by them before this court along with I.A. u/o 41, rule 27 of CPC and there after pass the judgment after hearing on both sides.

The suit is of the year 1997 hence the trial court is directed to dispose the matter within six months from the date of receipt of the records. Both the parties are directed to appear before the trial court on 12.7.2018 and co-operate the trial court for disposal of the matter without obtaining unnecessary adjournments.”

7. Being aggrieved by the same, the plaintiff is before this Court.

8. Sri K. Ravishankar, learned