CHANAMALLAYYA NINGAYYA SHIVAYOGIMATH Vs. SANGAPPA BASAPPA LAKSHATTI

JUDGEMENT

(1.) This appeal is preferred by the plaintiff against a Judgment of remand passed by the I Addl. Dist Judge, Vijaypur directing the Trial Court that an issue framed by it be heard as preliminary issue and if it is held that the suit is maintainable, then to decide the suit on all issues.

(2.) Material facts required to decide this appeal are that the appellant filed the suit to pass decree of declaration and perpetual injunction in respect of the suit property. By a decree, dated 03.07.2008 the suit was dismissed. An appeal filed was allowed and the case remanded for decision afresh by giving opportunity to the parties to adduce evidence. After remand the plaint was amended to incorporate alternate relief of recovery of possession. Written statement was filed. Seven issues were raised. Both sides adduced evidence, oral and documentary. A Court Commissioner appointed to conduct local inspection having executed the Commission Warrant was examined. Record relating to execution of the Commission Warrant and Report were marked. Upon hearing of arguments suit was decreed and the plaintiff was declared as owner of suit property. However, the relief of possession and perpetual injunction was negated. Feeling aggrieved, the plaintiff filed appeal and the defendants filed cross objections. After hearing of arguments, the following points were raised for consideration:

(3.) By answering point No. 1 in the affirmative and point No. 2 in the negative and after framing an issue, the appeal was allowed and the cross-objection was dismissed. The issue framed reads thus: