- 1 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2244 OF 2016 (INJ) BETWEEN: SRI JAYARAM N SHETTY S/O NANDU SHETTY, AGED ABOUT 53 YEARS, R/A HOSAMANE, EDAPUTHE MARNE VILLAGE, KARKALA TALUK, UDUPI DISTRICT – 574 104 …APPELLANT (BY SRI. H.D. SOMESHA, ADVOCATE FOR SRI. S. RAJARAMA, ADVOCATE) AND: SMT ANCY D’SILVA W/O MR. GABRIEL D SILVA, AGED ABOUT 42 YEARS, R/A NOOJIGURI, AJEKAR, MARNE VILLAGE, KARKALA TALUK, UDUPI DISTRICT – 574 104 …RESPONDENT (BY MS. K. PRASANNA, ADVOCATE FOR SRI. CHANDRANATH ARIGA K., ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.06.2015 PASSED IN RA NO.41/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.07.2012 PASSED IN OS NO.201/2009 ON THE FILE OF THE PRL. CIVIL JUDGE, KARKALA. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular second appeal is filed by the appellant, challenging the judgment and decree dated 11.06.2015, passed in R.A.No.41/2012 by the Senior Civil Judge and ACJM, Karkala, wherein the first Appellate Court has confirmed the judgment and decree passed in O.S.No.201/2009 dated 31.07.2012 by the learned Principal Civil Judge, Karkala. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the plaintiff, and the respondent was the defendant. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for permanent injunction. It is the case of the plaintiff that, - 3 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 the plaintiff is the owner in possession of ‘A’ schedule property based on the partition deed dated 18.06.1986, along with a certain extent of Government land. On the eastern side of suit ‘A’ schedule property, Sy.Nos.405/06 and 286/1B are situated, and land in Sy.No.405/06 is a kumki land abutting ‘A’ schedule property. It is contended that, the defendant obtained a saguvali chit about a certain extent of the said Government land as per the proceedings of the Tahsildar, Karkala, and attempted to remove the barbed wire fence put up on the eastern side of plaint ‘A’ schedule property. The defendant is not in possession of the land mentioned in the saguvali chit. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction. Accordingly, prays to decree the suit. 4. The defendant filed a written statement and counter claim contending that, the defendant is in possession and enjoyment of lands comprised in Sy.No.405/6P2 measuring 0.23 acre, Sy.No.286/1DP2 - 4 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 measuring 0.92 acres of Marne village, over 25 years. She had planted, reared, and protected cashew nut plants, and coconut plants, and the Tahsildar, Karkala, granted the said property to the defendant. The defendant land in Sy.No.405/6P2 is situated touching the land in Sy.No.405/2, and the plaintiff, to grab the property of the defendant in Sy.No.405/6P2, trespassed into the said property and attempted to put up a barbed wire fence, and filed a suit. It is contended that the plaintiff had filed a suit in O.S.No.83/2007, which was withdrawn by the plaintiff. The defendant prayed to grant a decree for permanent injunction restraining the plaintiff from trespassing into the land in Sy.No.286/10P2 measuring 0.92 acres, Sy.No.405/6A2 measuring 0.23 acres, the written statement ‘A’ schedule property or from removing barbed wire fence, mud agalu, and in any way interfering with the defendant’s peaceful possession and enjoyment of the suit schedule property. Hence, prays for the dismissal of the suit, and decree the counterclaim. - 5 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 5. The plaintiff filed a written statement to the counter claim of the defendant and denied that the defendant is in possession of the written statement suit schedule property, which is adjacent to the suit schedule property, and prays to dismiss the counterclaim. 6. The Trial Court, based on the above-said pleadings, framed the relevant issues. 7. The plaintiff, to substantiate his case, examined himself as PW-1, and marked two documents as Exs.P1 and 2. In rebuttal, the defendant examined herself as DW.1, and marked six documents as Exs.D1 to 6. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence of the parties, dismissed the suit of the plaintiff, and decreed the counter claim of the defendant vide judgment dated 31.07.2012. - 6 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 8. The plaintiff, aggrieved by the dismissal of the suit, preferred an appeal in R.A.No.41/2012 on the file of learned Senior Civil Judge and ACJM, Karkala. 9. The First Appellate Court, after hearing the learned counsel for the parties, framed the relevant points for consideration and consequently, dismissed the appeal vide judgment dated 11.06.2015. 10. The plaintiff, aggrieved by the impugned judgments passed by the Courts below, has filed this regular second appeal. 11. Heard the argument of the learned counsel for the plaintiff. 12. Learned counsel for the plaintiff submits that the plaintiff is in possession and enjoyment of the suit schedule property. The Courts below have not properly considered the evidence on record. He submits that, the plaintiff came in possession of the suit schedule property by a partition deed dated 18.06.1986, and the plaintiff’s - 7 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 name appears in the revenue records. The Courts below have failed to draw a presumption under Section 135 of the Karnataka Land Revenue Act, 1964. Hence, on these grounds, he prays to allow the appeal. 13. Perused the records, and considered the submissions of the learned counsel for the plaintiff. 14. The plaintiff filed a suit for permanent injunction. In a suit for permanent injunction, the Court is required to consider the plaintiff’s possession, and interference over the suit schedule property. Admittedly, in the instant case, the defendant has also sought a counter claim for a relief of permanent injunction. The counter claim of the defendant was decreed, and the trial Court granted a temporary injunction in favour of the defendant. The suit of the plaintiff was dismissed. The plaintiff did not challenge the decree of counter claim. He has challenged the dismissal of the suit, the findings recorded by the trial Court regarding counter claim have attained finality. If - 8 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 the judgment and decree passed by the trial Court is disturbed, it virtually amounts to passing a conflicting decision. Further, the trial Court recorded a finding that the defendant is in possession of the suit schedule property, and the plaintiff failed to establish his possession over the suit schedule property. Both the Courts below, have concurrently recorded a finding of facts against the plaintiff, holding that the plaintiff is not in possession of the suit schedule property, and the defendant is in possession of the suit schedule property. The findings recorded by the trial Court regarding the counter claim have attained finality. In view of the same, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration. 15. Accordingly, I proceed to pass the following: ORDER i. The Appeal is dismissed. - 9 - NC: 2025:KHC:9091 RSA No. 2244 of 2016 ii. The judgments and decrees passed by the Courts below, are hereby confirmed. iii. No order as to the costs. In view of the dismissal of the appeal, I.A.Nos.1/2017 and 1/2025, do not survive for consideration, and are accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SKS