YASHODHAMMA Vs. SUDHAKARA

JUDGEMENT

(1.) This matter is listed for admission today. Heard the learned counsel for the appellants and the learned counsel for the respondent.

(2.) This appeal is filed challenging the judgment and decree dtd. 25/10/2021, passed in R.A.No.15/2021, on the file of the Additional Senior Civil Judge and JMFC, Devanahalli, allowing the appeal and setting aside the judgment and decree of the Trial Court dtd. 22/7/2021, passed in O.S.No.259/2013. The Appellate Court remanded the matter to the Trial Court with a direction to frame additional issue as indicated in the body of judgment and appoint the Court Commissioner to examine the issue of existence of alternative way to reach the house of the plaintiff and give an opportunity to the parties to put forth their contention. The Appellate Court directed to dispose of the matter within an outer limit of four months. Hence, the present appeal is filed before this Court.

(3.) The learned counsel for the appellants would vehemently contend that the plaintiff is having access to the eastern and western side of his property. The learned counsel submits that the appellants have purchased the property to the extent of 21 guntas and if road is given to the plaintiff on the northern side, they are going to lose portion of the property. When the plaintiff is having alternative access to his property on the eastern and western side, the First Appellate Court ought not to have set aside the order and remanded the matter with a direction to frame an additional issue. The learned counsel would contend that the Trial Court has given the finding based on the evidence of plaintiff's witnesses, who have given admission with regard to the alternative road and the First Appellate Court committed an error in coming to the conclusion that whether road is in existence or not has to be adjudicated. The First Appellate Court in paragraph No.38 taken note of the evidence of P.W.5 to P.W. 7. The Trial Court having considered the material rightly dismissed the suit and the Appellate Court ought not to have set aside the order and remanded the matter.