- 1 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1781 OF 2013 (INJ) BETWEEN: SRI.VENKATESH, S/O ACHAPPA, AGED ABOUT 44 YEARS, R/AT TUBAGERE, DODDABALALPUR TALUK. …APPELLANT (BY SRI.V.F.KUMBAR, ADVOCATE) AND: SRI.NARASIMHARAJU, S/O MALLAIAH, MAJOR, R/O KONDASANDRA, TUBUGERE HOBLI, DODDABALLAPUR TALUK. …RESPONDENT (BY SRI.DR.K.N.VENKATESH, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 5.8.2013 PASSED IN R.A.NO.10/2012 ON THE FILE OF SENIOR CIVIL JUDGE & JMFC, DODDABALLAPUR, DISMISSING THE APPEAL AND AFFIRMING THE JUDGEMENT AND DECREE DTD 30.3.2012 PASSED IN OS.NO.85/2004 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, DODDABALLAPUR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 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 05.08.2013, passed in R.A.No.10/2012 by the learned Senior Civil Judge and JMFC, Doddaballapur and the judgment and decree dated 30.03.2012, passed in O.S.No.85/2004 by the learned Principal Civil Judge, JMFC, Doddaballapur. 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, seeking a relief of permanent injunction, restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff of the suit schedule - 3 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 property. It is case of the plaintiff that the plaintiff is the absolute owner in possession of the suit schedule property and the suit schedule property originally belongs to Government. It was Government land and the plaintiff had been cultivating the said land for more than 15 years and applied for regularisation of the land to the grant committee. The said land was granted and a saguvali chit was issued in respect of the suit schedule property on 13.05.2002. Pursuant to the saguvali chit, the katha was transferred in the name of the plaintiff and is paying tax of the suit schedule property to the concerned authority. It is contended that the defendant has no right, title or interest in the suit schedule property and trying to dispossess the plaintiff from the suit schedule property. Hence, this suit. 3.1. The defendant filed a written statement denying the averments made in the plaint and it is contended that the defendant has been cultivating the suit schedule property for more than 20 years and the revenue authorities conducted a mahazar and prepared a sketch. - 4 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 The defendant has challenged the order of grant made in favour of the plaintiff. The Assistant Commissioner has set aside the grant order made in favour of the plaintiff. It is contended that the plaintiff is not in possession of the suit schedule property. Hence, prays to dismiss the suit. 3.2. The Trial Court, based on the aforesaid pleadings, framed the following issues: 1) Whether the plaintiff proves that he is in lawful possession for enjoyment of the suit schedule property as on the date of the suit? 2) Whether the plaintiff further proves that the alleged interference by the defendant? 3) What order or decree? 3.3. The plaintiff, to substantiate his case, examined himself as PW.1, examined one witness as PW.2, and marked 6 documents as Exs.P1 to P6. In rebuttal, the defendant was examined himself as DW.1, examined 2 witnesses as DW.2 and DW.3 and marked 3 documents as Exs.D1 to D3. The trial Court, after recording the - 5 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 evidence, hearing on both sides, and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the negative, and issue No.3 as per final order. The plaintiff’s suit was dismissed with cost vide judgment dated 30.03.2012. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.85/2004, preferred an appeal in R.A.No.10/2012 before the learned Senior Civil Judge and JMFC, Doddaballapur. 3.4. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the plaintiff has proved the plaintiff’s possession over the suit property? 2) Whether the plaintiff has proved the alleged interference? 3) Whether the findings of the trial Court on issues No.1 and 2 calls for any interference? 4) What order or decree? - 6 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 3.5. The First Appellate Court, after hearing the parties, and re-assessing the verbal and documentary evidence, answered point Nos.1 to 3 in the negative and point No.4 as per the final order. The appeal was dismissed with costs and the judgment and decree passed in O.S.No.85/2004 dated 30.03.2012 was confirmed. The plaintiff, aggrieved by the impugned judgments, has filed this Regular Second Appeal. 4. This Court, on 12.08.2014, admitted the appeal to consider the following substantial question of law : 1) Were the courts below justified in dismissing the suit of the plaintiff only on the basis of the order passed by the Assistant Commissioner dated 22.04.2006 canceling the grant when the appeal against the said order is pending consideration before the Deputy Commissioner in LND No.5/2011-12 with regard to grant as per Ex.P1 dated 13.05.2003? 2) Whether the courts below justified in dismissing the suit disbelieving Exs.P1 to 4 – grant certificate, mutation extract, RTC and notice issued by the Tahsildar evidencing that the grant was made in favour of the plaintiff? - 7 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 3) Whether the courts below are justified in dismissing the suit in the facts and circumstances of the present case? 5. Heard the arguments of the learned counsel for the plaintiff, and the learned counsel for the defendant. 6. Sri K.N.Phanindra, learned Senior counsel for the plaintiff submits that the order passed by the Assistant Commissioner was challenged before the Deputy Commissioner and the Deputy Commissioner has dismissed the appeal and the plaintiff, aggrieved by the order passed by the Assistant Commissioner and the Deputy Commissioner, preferred a writ petition. He submits that the order passed by the Assistant Commissioner has not attended the finality. He submits that the plaintiff has produced the records to show that the plaintiff is in possession of the suit schedule property. He submits that both courts below have committed an error and recording of the finding that the plaintiff is not in possession of the suit schedule property, is contrary to the - 8 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 records. He submits that the boundaries shown in the plaint are correct. He submits that both courts below have committed an error in passing the impugned judgments on the ground that there is a discrepancies in the boundary. Hence, on these grounds, he prays to allow the appeal. 7. Per contra, learned counsel for the defendant submits that the plaintiff is not in possession of the suit schedule property and the grant made in favour of the plaintiff was set aside by the Assistant Commissioner and the Deputy Commissioner confirmed the same. He submits that the plaintiff has failed to establish possession over the suit schedule property as on the date of filing the suit. He submits that both courts below have concurrently recorded a finding of fact against the plaintiff. He submits that both courts below were right in passing the impugned judgments. Hence, he prays to dismiss the appeal. 8. Perused the records, and considered the submissions of learned counsel for the parties. - 9 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 9. REG. SUBSTANTIAL QUESTIONS OF LAW NO.1 TO 3: Substantial questions of law Nos.1 to 3 are discussed together as they are interlinked with each other, to avoid the repetition of facts. The plaintiff, to substantiate his case examined himself as PW.1. He has deposed that the plaintiff is the absolute owner in possession of the suit schedule property. It is government land and the plaintiff has been cultivating the land for more than 15 years unauthorisedly and has submitted an application for regularisation of the land before the land grant commission. The Land Grant Commission granted the said land in favour of the plaintiff. The grant order was challenged by the defendant before the Assistant Commissioner. The Assistant Commissioner set aside the grant made in favour of the plaintiff. The plaintiff aggrieved by the order passed by the Assistant Commissioner preferred an appeal before the Deputy Commissioner and the said appeal is pending for consideration and to prove that the plaintiff is in - 10 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 possession of the suit schedule property, he produced the documents marked as Ex.P1 is the grant certificate which discloses that the land grant commission granted the suit schedule property in favour of the plaintiff, Ex.P2 is the mutation extract which discloses that based on Ex.P1 the name of the plaintiff was mutated in the revenue records, Ex.P3 is the RTC extract which discloses that the plaintiff is in possession of the suit schedule property, Ex.P4 is the notice issued by the Tahsildar, Ex.P5 is the sketch, Ex.P6 is the RTC extract. During the cross-examination it was suggested to PW.1 that the grant order was set aside by the Assistant Commissioner and the said suggestions were admitted by PW.1. Further, it was suggested that the plaintiff is not in possession of the suit schedule property. The said suggestion was denied by PW.1. Further, the plaintiff, to establish his possession over the suit schedule property examined one witness as PW.2, who has deposed that the plaintiff is in possession of the suit schedule property. - 11 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 10. In rebuttal, the defendant examined himself as DW.1. He deposed that the plaintiff is not in possession of the suit schedule property and grant made in favour of the plaintiff was challenged by the defendant before the Assistant Commissioner and the Assistant Commissioner set aside the grant order made in favour of the plaintiff and the plaintiff aggrieved by the order passed by the Assistant Commissioner preferred an appeal before the Deputy Commissioner which is pending and it is also deposed that the Assistant Commissioner while setting aside the order of grant has observed that the plaintiff is not in possession of the suit schedule property and on the other hand the defendant is in possession of the suit schedule property. The defendant in order to prove the defence, produced the document, where, Ex.D1 is the mahazar which discloses that the defendant is in possession of the suit schedule property, Ex.D2 is the certified copy of the order passed by the Assistant Commissioner which discloses that the grant order made - 12 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 in favour of the plaintiff was set aside and Ex.D3 is the RTC extract which discloses that the suit schedule property is the Government Land. The defendant also examined 2 witnesses as DW.2 and DW.3, who have deposed that the defendant is in possession and enjoyment of the suit schedule property. 11. From the perusal of the entire evidence on record, it is the case of the plaintiff that the plaintiff was in unauthorised occupation of the suit land and applied for regularisation and the land grant commission granted the suit schedule property in favour of the plaintiff as per Ex.P1. The defendant challenged Ex.P1 before the Assistant Commissioner. The Assistant Commissioner set aside the grant made in favour of the plaintiff. While setting aside the grant certificate, the Assistant Commissioner recorded a finding that the plaintiff is not in possession and enjoyment of the suit schedule property and the defendant is in possession and enjoyment of the suit schedule property. The order of the Assistant - 13 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 Commissioner was challenged before the Deputy Commissioner. The learned counsel for the plaintiff submits that the said appeal was dismissed by the Deputy Commissioner and the plaintiff aggrieved by the order passed by the Assistant Commissioner and the Deputy Commissioner, preferred a writ petition before this Court. Admittedly, the revenue authorities have recorded a finding that the plaintiff is not in possession of the suit schedule property as of the date of filing a suit. On the other hand, the defendant is in possession of the suit schedule property. It is well settled that in a suit for perpetual injunction, the plaintiff is required to establish a possession and alleged interference. Admittedly, the plaintiff has failed to establish the possession of the suit schedule property. Both courts below have rightly held that the plaintiff is not in possession of the suit schedule property. Further Ex.P2 i.e., the mutation order was passed based on Ex.P1. As observed above, the Assistant Commissioner has already set aside Ex.P1. Ex.P1 was set - 14 - HC-KAR NC: 2025:KHC:24328 RSA No. 1781 of 2013 aside and all further proceedings stand vitiated. Accordingly, I answer the substantial question of law Nos.1 to 3 in the Affirmative. 12. In view of the aforesaid facts and circumstances, I proceed to pass the following: ORDER The Regular Second Appeal is dismissed. The judgments and decrees passed by the courts below are hereby confirmed. No order as to the costs. Needless to say that, in case, if the plaintiff succeeds in the writ petition, liberty is reserved to the plaintiff to agitate his grievance before the appropriate forum. In view of the dismissal of the appeal, the pending IAs if any, do not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB CT: BHK