The captioned Miscellaneous Second Appeal is

filed by defendant questioning remand the order

passed by the First Appellant Court by its judgment

and

decree

dated

17.10.2019

passed

in

RSA.No.5016/2016.

The facts leading to the above said case

are as under:

The

respondents

herein

filed

a

suit

for

declaration and for consequential relief of injunction.

The respondents-plaintiffs claim they are the owners

of suit schedule property and that they have

purchased

the

same

from

T.Bhagirathi

Marulasiddanagouda

for

sale

consideration

of

Rs.3,00,000/- under a registered sale deed dated

28.06.1999.

The respondents-plaintiffs claim that they

are in exclusive possession and enjoyment over the

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suit schedule property and further claim that from the

date of purchase of suit schedule property, they are in

possession and enjoyment. The respondents-plaintiffs

also claim that there is a staircase on the eastern side

and the said staircase was used by respondents-

plaintiffs’ vendor. The respondents-plaintiffs further

claim that after purchase, they are also using the

staircase for business purpose. The respondents-

plaintiffs demolished the entire building except ground

floor front portion and reconstructed the ground floor

portion after obtaining necessary licence from the

concerned

authorities.

The

respondents-plaintiffs

further contended that the old exiting building on the

front side was retained and the same is referred as

‘ABCDE’ portion in hand sketch and on the southern

side,

the

respondents-plaintiffs

put

up

a

new

construction which was referred ‘CDGH’ in the rough

sketch. The respondents-plaintiffs contention is that

the portion shown as ‘DEFG’ is open space and the

same is retained by respondents-plaintiffs with a view

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to construct staircase and also to make use of open

space for laying drainage and for other purposes.

The grievance of the respondents-plaintiffs

was that appellant-defendant who is the adjoining

owner and who is not in good terms has commenced

with construction without obtaining any licence from

the authorities. The respondents-plaintiffs claim that

the

present

appellant-defendant

taking

undue

advantage of open space and with a view to grab the

said property has constructed ‘KL’ wall on the western

side and also attempted to grab respondents-plaintiffs’

‘DEFG’ open space and therefore filed a suit for

declaration and injunction.

5.

On

receipt

of

summons

the

present

appellant-defendant

contested

the

proceedings,

stoutly denied the entire averments made in the plaint

and also seriously disputed the sketch furnished along

with the plaint. The appellant-defendant contended

that she has commenced with construction strictly in

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terms of building byelaws and construction is also

within her property. Therefore the appellant-defendant

contended that suppressing all these material facts,

the present suit is filed. The appellant-defendant also

contended that the portion referred as ‘EDFG’ in the

rough sketch is factually incorrect and the story

narrated in the plaint depicting the factual matrix in

sketch is a concocted story.

6.

The Trial Court having assessed the oral

and documentary evidence dismissed the suit. The

respondents-plaintiffs

feeling

aggrieved

by

the

dismissal of the suit, preferred appeal before the First

Appellate Court.

7.

The First Appellate Court having formulated

points for consideration has come to conclusion that

the proper issues are not framed by the Trial Court

and has set aside the judgment and decree of the Trial

Court and remitted the matter for de novo trial with a

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direction to recast the issues as reflected in page

No.22 of the judgment.

8.

Heard learned counsel appearing for the

appellant-defendant and respondents-plaintiffs and

perused the remand order under challenge.

9.

Respondents-plaintiffs initially filed a suit

for

declaration

and

injunction.

Pending

suit,

respondents-plaintiffs alleged that the appellant-

defendant has illegally constructed by encroaching

over their property and theref