GOVERNMENT OF KARNATAKA Vs. M B PATIL

JUDGEMENT

(1.) this appeal which is titled as miscellaneous second appeal and is virtually an appeal under order 43, Rule (1) of the Code of Civil Procedure against an order of remand and may be termed first appeal from order itself has arisen from the judgment and order dated 1-12-1993 given by the additional civil judge and assistant sessions judge, tumkur (sri h.r. deshpande) in regular appeal No. 188 of 1990 arising out of judgment and decree dated 2-11-1990 delivered by the principal munsiff, tumkur in original suit No. 412 of 1989.

(2.) the plaintiff-respondent filed the suit for relief of permanent injunction directing the defendants to restore the schedule property to its original condition by filling up the pits and by removing the earth. The plaintiff claimed himself to be the owner in possession of the land marked in the plaint sketch by letters 'abcdefg'. The plaintiff based his claim on the basis of certain registered sale deed wherein the property have been alleged to have been purchased from Smt.lakshminarasamma. The defendants contested the suit and filed the written statement and on the basis of the pleadings of the parties, the trial court framed the following issues:

(3.) the trial court that is the learned munsiff answered is suenos. 1 to 3 in negative and finally dismissed the plaintiff's suit. Having felt aggrieved from the judgment and decree of the trial court, the plaintiff filed the regular appeal No. 188 of 1990. The lower appellate court considered the matter and on one hand it rejected the application for appointment of commissioner by way of additional evidence, on the other hand the lower appellate court considered the application for amendment of the plaint moved by the plaintiff who was appellant before the learned civil judge and allowed the amendment application on payment of costs of Rs. 250/- to the respondents. After having allowed the amendment application, the lower appellate court considered it just and proper that the case be remanded for trial afresh in the light of the amendment application after giving the defendants opportunity to file the additional written statement as well as of the trial of the case after framing of proper issues and after recording the necessary evidence.