JUDGMENT

SURINDER SINGH NIJJAR, J. — 1. This appeal is directed against the final judgment and decree/order dated 23rd of July, 2008 passed by the learned Single Judge of the High Court of Karnataka in RFA No.1732 of 2005 filed by the respondents whereby the High Court in part modified and in part set aside the judgment and decree dated 4th August, 2005 passed by the Vth Additional City Civil Judge, Bangalore in OS No.163 of 1999.

2.The short issue which arises before us is whether the High Court was justified in permitting the respondents to raise the counter claim at a stage after the issues had been framed by the trial court.

3.In order to decide the aforesaid issue, it is not necessary to make a detailed reference to the chequered history of the litigation between the parties. We may, however, briefly narrate the facts.

4.The appellants herein were the plaintiffs before the trial court and the respondents were the defendants.

5.The appellant is an Association registered under the Societies Registration Act. The appellant contends that it purchased 2 acres 30 guntas of land in Sy.No.110/2 of Laggere Village (the schedule property) under an agreement of sale dated 26th November, 1988 from its vendors Sri B.C. Vijayakumar and Smt. Mayamma. In part performance of this agreement of sale, the appellant was put in possession of the schedule property. The appellant and is members are in peaceful possession and enjoyment of the same. In the month of December, 1998, the respondents tried to interfere with the appellant’s possession and enjoyment of the schedule property and therefore, they filed O.S.No.163 of 1999 for grant of decree of permanent injunction.

6.The respondents 1 and 2 entered appearance before the trial court, filed written statement inter alia contended that they are the owners of a portion of land in Sy.No110/1 of Laggere village and the appellants are trespassing into their property. The respondents, therefore, opposed the claim of the appellants. On the basis of the pleadings, the trial court framed the following three issues for its consideration:

“1.Whether the appellant proves that it has been in lawful possession of the suit schedule property ?

2.Whether the appellant proves interference ?

3.To what order and reliefs the parties are entitled ?”

7.Before the trial court, the appellant examined six witnesses as PWs1 to 6 and got marked Exs.P1 to P58. The respondents examined one witness as DW-1 and got marked Ex.D1 to D44. The trial court after hearing both the parties and on appreciation of the pleadings oral and documentary evidence on record held that the appellants are in peaceful possession and enjoyment of the schedule property; there is interference by the respondents and consequently, decreed the suit of the appellants for permanent injunction vide judgment dated 4th August, 2005.

8.Aggrieved by this judgment and decree of the trial court, the respondents approached the High Court of Karnataka in RFA No.497 of 2002. The High Court by its judgment dated 18th June, 2002 allowed the appeal, set aside the judgment and decree of the trial court and remanded the matter to the trial court for fresh disposal in accordance with law. The High Court while remanding the matter observed as under:

“Therefore, keeping in view the submissions made, I deem it desirable that fresh survey is to be carried out in this suit by the Assistant Director of Land Records (hereinafter referred to as ‘ADLR’) by giving notice to both the parties and in their presence the survey is to be made. The appellants are however entitled to produce the records of the survey done earlier as an additional document before the trial Court and after survey, considering the reports of the Surveyor and the additional documents, if any, and if necessary by allowing oral evidence, the trial court shall dispose of the suit in accordance with law.”

9.After remand from the High Court, the respondents amended their written statement and incorporated counter claim to