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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 4^TH DAY OF DECEMBER, 2021

BEFORE

THE HON9BLE MR. JUSTICE R. NATARAJ

MISCELLANEOUS SECOND APPEAL NO.17 OF 2018

BETWEEN:

SMT. HEMAVATHI

W/O NAGARAJA,

D/O SHIVAMMA,

AGED ABOUT 47 YEARS,

R/AT HOSSAHALLI VILLAGE,

NARAYANAPURA GRAMA PANCHAYATH,

CHINNAKURALI HOBLI,

PANDAVAPURA TALUK-571434

...APPELLANT

(BY SRI.KALYAN R., ADVOCATE)

AND:

1.

B. JAYARAMEGOWDA

S/O. BETTEGOWDA,

AGED ABOUT 56 YEARS

2.

CHIKKA NAGEGOWDA,

S/O DOLLEGOWDA,

AGED ABOUT 56 YEARS

3.

RAMESH

S/O BOREGOWDA,

AGED ABOUT 48 YEARS

4.

SIDDARAMEGOWDA

SIDDEGOWDA

AGED ABOUT 53 YEARS

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5.

PUTTEGOWDA

S/O SHIVAMANJEGOWDA

AGED ABOUT 46 YEARS

6.

GUDINAGEGOWDA

BATTEGOWDA,

AGED ABOUT 48 YEARS

ALL ARE R/AT HOSAHALLI VILLAGE,

CHINAKURALI HOBLI,

PANDAVAPURA TALUK,

MANDYA-571401.

7.

NARAYANAPURA GRAMA PANCHAYATH,

CHINAKURALI HOBLI,

PANDAVAPURA TALUK-571434

REPRESENTED BY ITS

SECRETARY

&RESPONDENTS

(BY SRI. N.S.BHAT, ADVOCATE FOR R1, R3, R5 AND R6;

NOTICE SERVED ON R2, R4 AND R7 AND UNREPRESENTED)

THIS APPEAL IS FILED UNDER ORDER XLIII RULE (1)(U)

OF CPC, AGAINST THE JUDGMENT AND DECREE DATED

12.12.2017 PASSED IN R.A.NO.17/2013 ON THE FILE OF THE

SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA, ALLOWING

THE APPEAL SETTING ASIDE THE JUDGMENT AND DECREE

DATED 23.07.2013 PASSED IN O.S.NO.96/2002 ON THE FILE

OF THE CIVIL JUDGE AND JMFC AT PANDAVAPURA, REMANDING

THE MATTER BACK TO THE TRAIL COURT.

THIS APPEAL COMING ON FOR HEARING THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is filed by the respondent No.1 in

R.A.No.17/2013 on the file of the Senior Civil Judge and

JMFC, Pandavapura (henceforth referred to as 'First

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Appellate Court' for short) assailing the correctness of the

order dated 12.12.2017 by which it reversed the Judgment

and Decree of the Trial Court and remitted the case for

re-consideration afresh on the issues framed by the First

Appellate Court.

2. The suit in O.S.No.96/2002 was filed for

perpetual injunction and for mandatory injunction to direct

the defendant No.1 to remove the basement and wall

constructed over the suit property.

3. The suit was filed essentially on the premise that

the suit property belonged to Narayanapura Grama

Panchayath and that the defendant No.1 had encroached

into the suit property and had raised construction. The

defendant contested the suit and claimed that the

construction put up by him was not on the property

belonging to the Panchayath, but was on the property

bearing Sy. No.54/3A. Based on these contentions, the

Trial Court framed the following issues.

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1. Whether the plaintiff proves that the suit

schedule

property

belongs

to

Grama

Panchayath?

2. Whether the plaintiff proves that suit schedule

property is a part of village road?

3. Whether the plaintiff's prove that the defendant

had constructed a basement over the road?

4. Whether the plaintiff's suit as brought in public

interest litigation is maintainable?

5. Whether suit of plaintiff is maintainable without

seeking relief declaration over suit schedule

property?

6. Whether the alleged interference is true?

7. What order or decree?

4. The plaintiff was examined as P.W.1 and four

other witnesses were examined as P.Ws.2 to 5 and they

marked Exs.P.1 to 28. The defendant No.1 was examined

as D.W.1 and three witnesses were examined as D.Ws.1 to

3 and they marked documents as Exs.D.1 to 5.

5. Based on the oral and documentary evidence, the

Trial court held that the plaintiff had failed to prove that

the suit property belonged to the Grama Panchayath. It

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also held that the plaintiffs did not bring the suit in a

representative capacity and thus, dismissed the suit.

6. Being aggrieved by the aforesaid dismissal, the

plaintiffs filed R.A.No.17/2013. During the pendency of

the suit, the plaintiffs filed an application under Order XLI

Rule 25 of CPC to r