- 1 - NC: 2025:KHC:16982 RSA No. 78 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 78 OF 2016 (INJ) BETWEEN: 1. SMT. PREMA D/O LATE MAHADEVAPPA, AGED ABOUT 36 YEARS, 2. MAHADEVAMMA W/O LATE MAHADEVAPPA, AGED ABOUT 54 YEARS, 3. MAHENDRA S/O LATE MAHADEVAPPA, AGED ABOUT 30 YEARS, ALL ARE R/AT MUDAHALLI VILLAGE, KASABA HOBLI, NANJANGUD TALUK - 571 301. …APPELLANTS (BY SRI. P MAHESHA, ADVOCATE) AND: SMT. SUDHA S/O MURTHY, AGED ABOUT 45 YEARS, R/AT, MUDDAHALLI VILLAGE, KASABA HOBLI, NANJANGUD TALUK - 571 301. …RESPONDENT (RESPONDENT - SERVED) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16982 RSA No. 78 of 2016 THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 28.03.2014 PASSED IN R.A.NO.57/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, NANJANGUD, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 27.06.2013 PASSED IN OS NO.92/2013 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC, NANJANGUD. 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 appellants, challenging the judgment and decree dated 28.03.2014, passed in R.A.No. 57/2013 by the learned Senior Civil Judge and JMFC, Nanjangud. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The Appellants were the defendants, and the respondent was the plaintiff. - 3 - NC: 2025:KHC:16982 RSA No. 78 of 2016 3. Brief facts leading rise, to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for perpetual injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiff that she is the absolute owner and in possession of the suit schedule property. The plaintiff succeeded to the suit schedule property from her ancestors. Katha pertaining to the suit schedule property was changed in her name. She is in continuous possession and enjoyment of the suit schedule property. It is contended the defendants have no right, title or interest over the suit schedule property. On 01.02.2013, the defendants tried to interfere with the plaintiff's peaceful possession and enjoyment over the suit schedule property. It is contended that the plaintiff has lodged the complaint against the defendants, but the police did not issue any endorsement to the complainant and directed the plaintiff - 4 - NC: 2025:KHC:16982 RSA No. 78 of 2016 to approach the Civil Court. Hence, a cause of action arises for the plaintiff to file a suit. Accordingly, she prays to decree the suit. 4. The trial Court, issued the summons. Despite service of summons, the defendants remained absent. Hence, they were placed ex-parte. 5. The plaintiff, to substantiate her case, examined herself as PW1 and marked two documents as Ex.P1 and Ex.P2. The trial Court, after recording the evidence of the plaintiffs, framed the following points: 1. Whether plaintiff is entitled for the relief of permanent injunction against the defendant? 2. Whether plaintiff is entitled for the reliefs as sought for in the suit? 3. What order or decree? 6. The trial Court, after hearing on both sides and assessment of verbal and documentary evidence, - 5 - NC: 2025:KHC:16982 RSA No. 78 of 2016 answered point Nos.1 and 2 in the negative, and point No.3 as per final order. The suit of the plaintiff was dismissed with cost vide judgment dated 27.06.2013 The plaintiff, aggrieved by the judgment and decree passed in OS No. 92/2013, preferred an appeal in R.A.No.57/2013 on the file of Learned Senior Civil Judge and JMFC, Nanjangud. 7. The first appellate court, after hearing the learned counsel for the parties, framed the following points for consideration. 1. Whether the plaintiff proves that she is in lawful possession and enjoyment of the suit schedule property as on the date of the suit? 2. Whether the Plaintiff further proves the alleged interference by the defendants? 3. Whether the appellant proves that the judgment and decree of the trial court is illegal, erroneous, perverse and called for interference of this court? 4. What Order? - 6 - NC: 2025:KHC:16982 RSA No. 78 of 2016 8. The first appellate court, after reassessing the verbal and documentary evidence answered point Nos.1 to 3 in the affirmative, and point No.4 as per final order. The appeal was allowed. The judgment and decree passed in O.S.No.92/ 2013 dated 27.06.2013 passed by the learned Additional Civil Judge and JMFC was set aside. Consequently, the suit of the plaintiff was decreed. The order of permanent injunction was granted, by restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The defendants, aggrieved by the judgment and decree passed in R.A.No.57/2013, filed this Regular Second Appeal. 9. Notice was issued to the plaintiff. Despite service of notice, the plaintiff remained unrepresented. 10. Heard the arguments of the learned counsel for the defendants. - 7 - NC: 2025:KHC:16982 RSA No. 78 of 2016 11. Learned counsel for the defendants submits that the defendants have not received the summons issued by the trial Court. Hence, the defendants were unaware of filing of a suit by the plaintiff. He also submits that the trial Court, on appreciating the entire evidence on record, has rightly dismissed the suit. He submits that the plaintiff, aggrieved by the dismissal of the suit, filed an appeal in R.A. No.57/2013. He further submits that the defendants have engaged counsel Sri.Narendra B.R. He submits that the said counsel was selected as an Assistant Public Prosecutor. He also submits that the advocate has not informed about the status of the case. The defendants came to know only when the plaintiff has filed the Execution Petition in EP.No.116/2015. Hence, he submits the First Appellate Court, without properly considering the material on record, passed the impugned judgment. He submits that the impugned judgment passed by the First Appellate Court is arbitrary, erroneous and same is liable to be set aside. Hence, on these grounds, he prays to allow the appeal and remit the matter to the trial Court - 8 - NC: 2025:KHC:16982 RSA No. 78 of 2016 with the liberty to the defendants to file a written statement. 12. This court, admitted the appeal on 26.11.2024 to consider the following substantial question of law. "Whether first appellate Court was justified in reversing trial Court judgment without giving necessary findings for grant of decree of permanent injunction?" Reg: Substantial question of law:- 13. It is not in dispute that the plaintiff has filed the suit for permanent injunction, claiming that the plaintiff is the owner in possession of the suit schedule property and the defendants are trying to interfere with the peaceful possession and enjoyment of the plaintiff's over the suit schedule property. The plaintiff, to prove her case, examined herself as PW1 and she reiterated the plaint averments in the examination in chief. She produced the documents, where Ex.P1 is the assessment Extract. Ex.P2 - 9 - NC: 2025:KHC:16982 RSA No. 78 of 2016 is the tax paid receipt. The trial Court recorded its finding that a combined reading of the documentary evidence produced by the plaintiff clearly shows that the plaintiff is in possession and enjoyment of the suit schedule property, however, the plaintiff has not produced the registered sale deed or any other documents regarding the suit schedule property and held that the plaintiff has failed to prove alleged interference of defendants and dismissed the suit with cost. The plaintiff, aggrieved by the judgment and decree passed in OS No.92/2013, preferred an appeal in R.A.No.57/2013. The defendants appeared through the counsel Sri.Narendra.B.R. It is contended that Sri.Narendra.B.R was appointed as an Assistant Public Prosecutor. He did not represent the defendants before the first appellate court. The First Appellate Court hearing the arguments of the learned counsel for the plaintiff passed the impugned judgment. It is submitted that the impugned judgment passed by the first appellate court is in violation of the principles of natural justice. Hence, on this ground, the impugned judgment is liable to be set aside. The Firat - 10 - NC: 2025:KHC:16982 RSA No. 78 of 2016 Appellate Court has not assigned the proper reasons while passing the impugned judgment. The First Appellate Court without the application of mind, has proceeded to pass the impugned judgment. The counsel appearing for the defendants was appointed as an Assistant Public Prosecutor. Hence, he could not represent the defendants before the First Appellate Court. Hence, the impugned judgment passed by the First Appellate court is liable to be set aside. In view of the above discussions, I answer substantial question of law in the negative. Accordingly, I proceed to pass the following order: ORDER 1. The appeal is allowed. 2. The impudent judgment passed in R.A.No.57/2013 by the learned Senior Civil Judge and J.M.F.C. Nanjangud dated 28.03.2014 and the judgment and decree dated 27.06.2013 passed in - 11 - NC: 2025:KHC:16982 RSA No. 78 of 2016 O.S. No. 92/2013 by the learned Additional Civil Judge and J.M.F.C. Nanjangud are set aside. 3. The suit in O.S.No.92/2013 is restored to its original file. 4. The defendants are entitle to file a written statement within one month from the date of appearance, and the trial Court, thereafter, proceeds with the suit. 5. The trial Court is directed to issue notice to both the parties and thereafter provide an opportunity for both parties to lead evidence and thereafter pass an appropriate judgment in accordance with the law. 6. This Court has not made any adjudication on issues in dispute. All the contentions of the parties are kept open. - 12 - NC: 2025:KHC:16982 RSA No. 78 of 2016 7. The Office is directed to transmit the records to the trial Court. Sd/- (ASHOK S.KINAGI) JUDGE RCK List No.: 1 Sl No.: 3 CT: BHK