- 1 - HC-KAR NC: 2025:KHC:22073 RSA No. 408 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.408 OF 2025 (INJ) BETWEEN: 1. SMT. SHUSHILAMMA W/O LATE THIPPESHAPPA AGED ABOUT 78 YEARS 2. KRISHNAMURTHY T. S/O LATE THIPPESHAPPA AGED ABOUT 58 YEARS 3. SMT. INDRAMMA D/O LATE THIPPESHAPPA W/O RAMESHAPPA AGED ABOUT 55 YEARS R/O KALLAHALLI VILLAGE CHIKABIDIRE POST HULIYARU HOBIL CHIKANAYAKANAHALLI TALUK-572 228. 4. LOKESHAPPA T. S/O LATE THIPPESHAPPA AGED ABOUT 53 YEARS 5. MANJAPPA S/O LATE THIPPESHAPPA AGED ABOUT 49 YEARS APPELLANTS NO.1, 2, 4 AND 5 ARE AGRICULTURISTS R/O KONDAPURA VILLAGE Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:22073 RSA No. 408 of 2025 KASABA HOBLI HOSADURGA – 577 544. …APPELLANTS (BY SRI. SPOORTHY HEGDE N., ADVOCATE) AND: 1. SMT. MALLAMMA W/O LATE MAHALINGAPPA AGED ABOUT 79 YEARS 2. BHAGYAMMA @ BHYRAMMA D/O LATE KENCHAPPA AGED ABOUT 48 YEARS 3. ANIL KUMAR S/O LATE KENCHAPPA AGED ABOUT 38 YEARS 4. ASHWINI D/O LATE KENCHAPPA AGED ABOUT 38 YEARS 5. ASHA D/O LATE KENCHAPPA AGED ABOUT 31 YEARS 6. ANUSHA D/O LATE KENCHAPPA AGED ABOUT 26 YEARS 7. GOWRAMMA W/O HANUMANTHAPPA AGED ABOUT 60 YEARS 8. MANJAPPA S/O LATE MAHALINGAPPA, AGED ABOUT 61 YEARS, 9. CHANDRAMMA D/O LATE MAHALINGAPPA AGED ABOUT 59 YEARS - 3 - HC-KAR NC: 2025:KHC:22073 RSA No. 408 of 2025 10. KARIYAMMA W/O ANANDAPPA, D/O LATE MAHALINGAPPA AGED ABOUT 54 YEARS 11. KARIYAPPA S/O CHIGARANGAPPA, AGED ABOUT 74 YEARS 12. RANGANATHA S/O PARAPPA AGED ABOUT 41 YEARS 13. CHANDRAPPA S/O KARIYAPPA, AGED ABOUT 70 YEARS ALL ARE AGRICULTURISTS R/O KODAPURA VILLAGE KASABA HOBLI HOSADURGA TALUK CHITRADURGA–577 544. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.01.2025 PASSED IN R.A.NO.9/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSADURGA, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 18.11.2021 PASSED IN O.S.NO.193/2016 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, HOSADURGA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:22073 RSA No. 408 of 2025 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellants. 2. The suit is filed for the relief of permanent injunction. The Trial Court having assessed both oral and documentary evidence available on record, particularly in paragraph No.23, comes to the conclusion that when the suit is filed for the relief of permanent injunction, it is the duty of the plaintiff to prove exclusive possession and enjoyment of the suit properties, but the plaintiff, except the plaint averments has not produced any material before the Court to prove his exclusive possession and enjoyment of the suit property and giving such finding dismissed the suit. 3. Being agreed by the said judgment and decree, an appeal is filed in R.A.No.9/2022. The counsel would vehemently contend that in the appeal also, the First Appellate Court committed an error in not appreciating the material available on record and an application is filed under Order 41 Rule 27 - 5 - HC-KAR NC: 2025:KHC:22073 RSA No. 408 of 2025 CPC to produce the partition deed and though First Appellate Court not framed any point for consideration to consider the additional documents, but in paragraph No.28 discussed the same that an application is filed along with the document dated 28.11.1990 and the same is not a registered partition deed. Hence, question of considering the said document does not arise and dismissed the appeal. 4. Now, learned counsel for the appellants would vehemently contend that both the Courts committed an error in not considering Exs.P4 and P5, wherein it is clearly stated that there was a partition between the ancestors and suit properties came to the share of the plaintiff and both the Courts ought to have considered the same and Trial Court committed an error in dismissing the suit and First Appellate Court committed an error in confirming the same. Hence, it requires reconsideration. 5. Hence, it requires reconsideration. 5. Having heard learned counsel for the appellants, when the suit is filed for the relief of the permanent injunction, it is the duty cast upon the plaintiff to prove that as on the date of filing of the suit, he is in possession of the suit schedule - 6 - HC-KAR NC: 2025:KHC:22073 RSA No. 408 of 2025 property and that there is interference and in order to prove the said factum of possession as well as interference, nothing is placed on record before the Trial Court and the same is observed in paragraph No.23 of the judgment of the Trial Court. No doubt, an attempt is made in the appeal to produce the document of earlier partition deed dated 28.11.1990 by filing an application under Order 41 Rule 27 CPC, the First Appellate Court having considered the fact that the said document is not a registered document, observed that question of entertaining the same as additional documents does not arise and dismissed the same and also considered the material on record regarding proving of exclusive possession of the plaintiff which has not been proved. When such material is considered by both the Trial Court as well as the First Appellate Court and fact finding is given with regard to very exclusive possession of the plaintiff in respect of the suit schedule property and now, document is placed on record and though contend that earlier there was a partition in the year 1990 and the same is an unregistered document and no document is placed before the court in pursuance of the said partition deed and even consequent upon the said partition, they are in - 7 - HC-KAR NC: 2025:KHC:22073 RSA No. 408 of 2025 possession also, no such document is placed to show that plaintiff is in possession of the property and unless exclusive possession of the property is proved by the plaintiff, granting any relief does not arise and both the Courts have taken note of factual aspects and question of law. Hence, question of admitting the second appeal does not arise, since finding is given on both question of fact and question of law by both the Courts. Therefore, no substantial question of law arises for consideration in this appeal to frame by admitting the second appeal. 6. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 64