Y.C. DASARAJA URS Vs. H.R. PRASANNA KUMAR AND MYSORE URBAN DEVELOPMENT AUTHORITY REP. BY ITS COMMISSIONER

JUDGEMENT

(1.) THE appellant in both the appeals has challenged the Judgment and Decrees of the Courts below dismissing his suit in O.S. No. 779/2007 and decreeing the suit of the respondent in O.S. No. 540/1996 and confirming the Judgments and Decrees of the trial Court. The facts relevant for the purpose' of this appeal are as under: The parties are referred to as per their name in the original proceedings, for the sake of convenience. The appellant -Y.C. Dasaraja Urs is the absolute owner in possession of the property bearing No. 1893 measuring 30 x 20 ft. situated at Kuvempunagar, Mysore on the basis of the allotment by Mysore Urban Development Authority [hereinafter referred to as "MUDA" for short] on 28.04.1984. A Sale Deed to that effect was executed by the MUDA in his favour. The first Sale Deed was executed on 27.07.1984 and a second Sale Deed for the site measuring east to west 3 ft. and north to south 20 ft. adjacent to this property was executed by the MUDA on 27.08.7.002. Thereafter, he put up construction over the suit property and has been in possession of the same. One H.R. Prasanna Kumar [respondent herein], who is the plaintiff in O.S. No. 540/1996 and the defendant in the suit instituted by Y.C. Dasaraja Urs [appellant herein] is the owner of the site bearing No. 1877 situated on the south -eastern corner of the house of the appellant having purchased it from M.R. Srinivasamurthy, the vendor and an allottee of the MUDA. He also put up a construction of house on the property purchased by him. As there was an obstruction to the peaceful possession and enjoyment of the suit property in possession of Y.C. Dasaraja Urs, he instituted the suit in O.S. No. 779/2007 claiming the relief of declaration and permanent injunction, whereas H.R. Prasanna Kumar had "'instituted O.S. No. 540/1996 alleging that there is an encroachment on his property to an extent of 3 x 20 ft. and that he is the owner of the set -back area measuring 3 x 30 ft. and for mandatory injunction to remove the encroachment measuring over an area of 3 x 4 ft. In O.S. No. 540/1996, the evidence of P.Ws.1 and 2 were recorded and in their evidence Exs. P1 to 4 were marked. The defendant was examined as D.W.1 and in his evidence Exs. D1 to 1 2 were marked. The trial Court after hearing learned counsel for the parties and on appreciation of the evidence on record, decreed the suit vide Judgment and Decree dated 14.03.2007, whereas in O.S. No. 779/2007, the evidence of the parties was recorded. The plaintiff -Y.C. Dasaraja Urs was examined as P.W.1 and in his evidence Exs. P1 to 26 were marked. The defendant -H.R. Prasanna Kumar has not led any oral or documentary evidence. This suit came to be dismissed by the trial Court vide Judgment and Decree dated 02.09.2008. Aggrieved by the Judgments and Decrees of both the Courts below, Y.C. Dasaraja Urs preferred two appeals in R.A. No. 848/2009 and R.A. No. 60/2010. Both these appeals were dismissed on 02.08.2010 vide separate Judgments. Aggrieved by the said Judgments -and Decrees of the Courts below, the present appeals have been filed by Y.C. Dasaraja Urs.

(2.) DURING the pendency of these appeals, this Court vide Order dated 19.07.2013, directed to implead the MUDA as a party and in pursuance of the said Order, the 2nd respondent -MUDA has been impleaded. Subsequently, on 22.07.2013 in both the appeals the 2nd respondent -MUDA was directed to produce the original records. On 20.08.2013, the 2nd respondent -MUDA filed a report along with two sketches to the Court. After receipt of the report, the 1st respondent -H.R. Prasanna Kumar has filed objection statement on 07.10.2013.

(3.) I have heard learned counsel for both the parties. The perusal of the report produced by the MUDA dated 05.08.2013 reveal that the site of the appellant -Y.C. Dasaraja Urs is on the eastern side, whereas that of the 1st respondent -H.K. Prasanna Kumar is on the western side. The suit property is said to be in between these two sites. It is claimed by the appellant that this area has been purchased by him under a registered Sale Deed after the allotment. The said fact is in dispute. In view of production of the report by the 2nd respondent -MUDA., which cannot be considered by this Court in the second appeal as it is the matter of recording the evidence and appreciating the same. It is for this reason the matter requires an order of remand by setting aside the Judgments and Decrees of both the Courts below. This has to be done in the interest of both the parties. In view of the objection statement filed by the 1st -respondent, it necessary for both the parties to adduce evidence. Therefore, in view of additional evidence, which has been produced after impleading the 2nd respondent -MUDA as party, the Judgments and Decrees of both the Courts below have to be set aside. In the circumstances, the Judgments and Decrees impugned in these appeals are set aside. Consequently, the appeals are allowed. The matters are remitted back to the trial Court with a direction to afford an opportunity to both the parties to adduce evidence and then decide the cases in accordance with law. To avoid any further delay, the parties are directed to appear before the trial Court on 04.01.2014. The trial Court uninfluenced by any of the observations made in the course of the Order shall dispose of the suits in accordance with law, preferably within 6 [six] months from the date of communication of this Order.