K MUNIVENKATAPPA Vs. B VENKATESHAPPA

JUDGEMENT

(1.) This is a Miscellaneous Second Appeal filed under Order 43, Rule l(ii) read with Section 104, CPC against the Judgment and decree dated 1-8-1989 passed in R.A. No. 69 of 1988 on the file of the Additional Civil Judge, Kolar, allowing the appeal, setting aside the Judgment and decree dated 30-11-1987 in O.S. No. 419 of 1981 on the file of the Principal Munsiff, Kolar, remanding the matter to him for fresh disposal in accordance with law.

(2.) The appellant filed a suit in O.S. No. 419 of 1981 before the Principal Munsiff, Kolar, for declaration of his title to the suit property and permanent injunction. The trial Court held that the appellant did not prove his title and therefore rejected his prayer for declaration of his title. However, his prayer for permanent injunction was granted on the ground that he was in actual possession and enjoyment of the suit property. Aggrieved by the findings of the learned trial Judge, respondent herein, who was 6th defendant before the trial Court, filed an appeal in R.A. No. 69 of 1988 before the Additional Civil Judge, Kolar. By the Judgment and decree dated 1-8-1989 the Civil Judge allowed the appeal, set aside the Judgment and decree of the trial Court, and the suit was remitted back to the trial Court for fresh disposal in accordance with law after recording necessary evidence on an issue framed by him.

(3.) The learned Civil Judge remanded the matter to the trial Court solely on the ground that the trial Court had not framed an issue on a specific plea raised by the respondent herein in his pleading to the effect that occupancy right had been granted to his father in respect of the suit schedule property and that was confirmed by the Special Deputy Commissioner for Inam Abolition and that he inherited the property as absolute owner and in possession of the same. The Civil Judge, therefore, framed the following issue: