GIRIJA A. BYAHATTI

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Digitally signed by GIRIJA A. BYAHATTI

Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, IS PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGEMENT & DECREE DATED 04.07.2019 PASSED IN R.A.NO.4/2012 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT, SITTING AT JAMKHANDI, AND JUDGMENT AND DECREE DATED: 16.12.2011, PASSED IN O.S. NO.8/2002 ON THE FILE OF THE SENIOR CIVIL JUDGE, MUDHOL, IN SO FAR FOR DISMISSIING THE SUIT IS CONCERNED, AND CONSEQUENTIALLY DECREE THE SUIT OF THE PLAINTIFF/APPEALLANT AND COST OF THE SUIT THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGEMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.

ORAL JUDGMENT

This is the appeal filed under Section 100 of C.P.C. praying for setting aside the judgment and decree dated 04.07.2019 in R.A.No.4/2012 on the file of I Additional District and Sessions Judge, Bagalkot sitting at Jamkhandi and set aside the judgment and decree dated 16.12.2011 in O.S.No.8/2002 on the file of Senior Civil Judge, Mudhol and to decree the suit of plaintiff.

Parties would be referred with their ranks, as they were before Trial Court for sake of convenience and clarity.

The plaintiff has filed the suit before Trial Court praying for declaration that he is the absolute owner of suit schedule property based on registered sale deed dated 24.02.1981; consequential relief of permanent injunction and for other reliefs.

Defendant has filed her written statement denying the title of plaintiff and possession of plaintiff over suit schedule property.

After completion of pleadings, Trial Court has framed the following issues:

“01. Whether the plaintiff proves that he is the owner of suit schedule properties?

02. Whether the plaintiff proves that he was in lawful possession and enjoyment of suit schedule properties as on the date of suit?

03. Whether the plaintiff further proves the alleged interference by the defendant?

04. Whether the suit is barred by limitation?

05. Whether the valuation made and court free paid on the plaint is not proper and correct?

06. Whether the suit is not maintainable as contended in Para-19 of written statement?

07. Whether the plaintiff is entitle for relief sought for?

08. What order or decree?”

The Trial Court after recording evidence and hearing arguments of both sides held that plaintiff is owner of suit schedule property, but failed to prove his possession over it and has not prayed for the relief of possession and further mere suit for declaration is not maintainable and thus, dismissed the suit in entirety.

Aggrieved by said judgment and decree, the plaintiff/appellant has filed first appeal before First Appellate Court. The first appellate court has dismissed the appeal by confirming the judgment of trial court.

Aggrieved by the same, the appellant/plaintiff is before this Court.

At the time of admitting the appeal, the following Substantial questions of law are formulated:

“Whether the First Appellate Court is justified in deciding the appeal on merits without considering IA No.1 filed under Order VI Rule 17 CPC, when there is specific order dated 13.02.2015 that I.A. will be considered along with the main appeal?”

Heard arguments of both sides.

Learned counsel for appellant Sri Mruthyunjaya S Hallikeri would submit that in the first appeal, he has filed I.A.No.1 under Order VI Rule 17 of C.P.C., praying for alternative relief of possession; without passing any order on said I.A., the first appellate court has dismissed the appeal, which is erroneous. Hence, prayed for allowing the appeal.

Learned counsel for respondent Sri Shivaraj S Ballolli would submit that in the appeal, amendment of pleadings cannot be granted as of right. He submitted arguments on merits of the case. Hence, prayed for dismissal of appeal.

Having heard the arguments of both sides and verifying