HAJARABEGUM Vs. KUTUBUDDIN MASIMSAB JAMADAR

JUDGEMENT

(1.) By consent of the learned Advocates appearing for the parties, the matter is taken up for final disposal. This Miscellaneous Second Appeal is directed against the judgment of the first appellate Court passed by the learned I Addl. Senior Civil Judge, in R.A. No. 10/2010. The appellant herein was the respondent in the said appeal and plaintiff in the Trial Court. Parties will be referred to as plaintiff and defendants as per their ranking in the Trial Court.

(2.) Plaintiff had filed a suit for mere permanent injunction on the basis of possession vide O.S.No. 46/2003 which was pending on the file of the Court of the Addl. Civil Judge (Jr.Dn.), Gokak. It was in respect of agricultural land measuring 1 acre in Sy.No. 81/2 of Chigadolli Village, Gokak Taluk. The said suit had been filed on the basis of an agreement of sale stated to have been executed by first defendant herein vide agreement dated 06.06.1987. On the basis of the protection available under Section 53A of the Transfer of Property Act, permanent injunction had been sought for and it was granted by the Trial Court on 23.01.2010 vide considered judgment based on the finding relating to three issues i.e., about lawful possession, interference and entitlement. This judgment was called in question under Section 96 of CPC before the Court of Senior Civil Judge, Gokak and the same was assigned to the I Addl. Senior Civil Judge, Gokak and numbered as R.A. No. 10/2010.

(3.) The learned Counsel for the appellant herein has filed the certified copy of the order sheet mentioned in R.A. No. 10/2010. The order sheet dated 12.10.2012 discloses that on behalf of the appellant therein as many as three applications had been filed. One was I.A.No. II filed under Order 8, Rule 1 of CPC along with the written statement with a request to take the same on file, I.A. No. III under Order 41, Rule 27 CPC and I.A.No. 4 with a similar application under Order 41, Rule 27. A memo had also been filed with one document. The learned Judge of the First Appellate Court had heard the arguments on merits and has chosen to allow the appeal by setting aside the judgment and decree passed in O.S.No. 46/2003. The matter was remanded to the Trial Court under Order 41, Rule 25 of CPC with a direction to substitute the issues as indicated in the judgment vide paragraph- 19 and also to give an opportunity for the parties to adduce additional evidence on the basis of recasted issues. It is this judgment of the appellate Court dated 18.03.2003 which is called in question on various grounds as set out in the appeal memo.