- 1 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2140 OF 2016 (DEC/INJ) BETWEEN: K K NAGARJU AGED ABOUT 35 YEARS, S/O. KEMPARAJEGOWDA, R/AT KEMPISIDDANAHUNDI VILLAGE, CHIKKAIANACHATRA HOBLI, NANJANGUD TALUK, MYSURU DISTRICT 571301 …APPELLANT (BY SRI. LOKESH D K, ADVOCATE FOR SRI. P NATARAJU, ADVOCATE) AND: H RANGAIAH AGED ABOUT 66 YEARS, S/O. LATE HUCHEGOWDA, R/AT KEMPISIDDANAHUNDI VILLAGE, CHIKKAIANACHATRA HOBLI, NANJANGUD TALUK, MYSURU DISTRICT 571301 …RESPONDENT (BY SMT. DIVYA KRISHNA BY SIVAN AND SIVA ASSOCIATES, ADVOCATE) THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.09.2016 PASSED IN RA NO. 60/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., AT NANJANGUD. ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 05.08.2015 PASSED IN OS NO. 93/2011 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC AT NANJANAGUD AND ETC. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 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 24.09.2016 passed in RA.No.60/2015 by the learned Senior Civil Judge and JMFC, Nanjangud. 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 a relief of declaration and permanent injunction. It is the case of the plaintiff that one Nanjegowda had three sons namely Nanjaiah, Marichikkaiah, Kemparajegowda @ Kemparachaiah. The plaintiff is the son of Kemparajegowda @ Kemparachaiah. The land bearing survey No.162/2 measuring 1 acre 26 guntas at Hejjige village, Chikkiayanachatra Hobli, Nanjangud Taluk, is the ancestral property of the plaintiff. The said land was divided among three sons of Sri. Nanjegowda in the family partition - 3 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 effected about 35 years back. The plaintiff’s father allotted 21 guntas of the land out of the said survey number. The father of the plaintiff is paying kandayam to the concerned authority. Out of 21 guntas of land, 4 guntas of land was alienated by the plaintiff’s father on 28.07.1987 and the remaining land is in possession and enjoyment of the plaintiff. The plaintiff’s father got converted the remaining land into sites and some portions of the converted land had been sold by the plaintiff’s father. The property described in the suit schedule property was retained by the plaintiff. The khatha stands in the name of the plaintiff with the consent of his father. The defendant is the neighbour of the plaintiff, and the property of the defendant is situated towards the eastern side of the plaint property. The defendant is trying to interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. Hence, a cause of action aroses for the plaintiff to file a suit for declaration of title and permanent injunction. Accordingly, prays to decree the suit. 4. The defendant filed a written statement denying the averments made in the plaint and it is contended that the plaintiff has suppressed the material facts and also denied the - 4 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 identity of the property. It is contended that in survey No.162/2, 4 guntas was alienated, and 4 guntas of land was purchased by him from the plaintiff’s father under a registered sale deed dated 22.03.1988, and the plaintiff’s father had delivered the possession of the suit land. The defendant and his brothers got constructed three portion of residential houses and living therein with their family. It is contended that the defendant is in possession and enjoyment of the suit schedule property. Hence, the suit filed by the plaintiff is not maintainable and accordingly, he prays to dismiss the suit. 5. The Trial Court based on the pleading of the parties has framed the following issues for consideration: “1. Whether plaintiff proves that he is the absolute owner of the suit schedule property? 2. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit? 3. Whether the plaintiff proves the alleged interference by the defendant? 4. Whether the plaintiff is for the releifs claimed? 5. What order or decree?” - 5 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 6. The plaintiff, to substantiate his case, examined himself as PW.1, examined one witness as PW.2, marked five documents as Ex.P.1 to Ex.P.5. On the other hand defendant got examined himself as DW.1, examined two witness as DWs.2 and 3, and marked two documents as Ex.D.1 and Ex.D.2. 7. The Trial Court after recording the evidence, hearing on both sides and on assessing the verbal and documentary evidence, answered issue Nos.1 to 4 in the affirmative and issue No.5 as per the final order. The suit of the plaintiff was decreed with cost vide judgment dated 05.08.2015. The defendant aggrieved by the judgment and decree passed in OS.No.93/2011 preferred an appeal in RA.No.60/2015 on the file of learned Senior Civil Judge and JMFC, Nanjangud. 8. The First Appellate Court, after hearing the learned counsel for both parties, framed the following points for consideration: “1. Whether the appellant proved that the Judgment and Decree of the trial court is illegal, erroneous, perverse and called for interference of this court? - 6 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 2. What Order?” 9. The First Appellate Court, on re-assessing the verbal and documentary evidence, allowed the appeal and set aside the judgment and decree passed by the Trial Court in OS.No.93/2011 and consequently dismissed the suit of the plaintiff vide judgment dated 24.09.2016. The plaintiff aggrieved by the judgment and decree passed in RA.No.60/2015, filed this Regular Second Appeal. 10. Heard the arguments of learned counsel Sri. Lokesh DK., appearing on behalf of learned counsel Sri. P Nataraju., appearing for the plaintiff, and learned counsel Smt. Divya Krishna., appearing for the defendant. 11. Learned counsel for the plaintiff submits that the plaintiff is the owner of the suit schedule property and there is no serious dispute regarding the identity of the property. The Trial Court was justified in decreeing the suit of the plaintiff. He also submitted that the First Appellate Court, without re- appreciating the entire evidence on record, reversed the judgment and decree passed by the Trial Court. He submits that the First Appellate Court has not properly framed the - 7 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 points for consideration. The impugned judgment passed by the First Appellate Court is not in compliance with Order 41 Rule 31 of Code Of Civil Procedure, 1908 (hereinafter referred as to ‘CPC’). He submits that the matter requires re-consideration by the First Appellate Court. Hence, on these grounds, he prays to allow the appeal. 12. Per contra, the learned counsel for the defendant supported the impugned judgment and submits that the First Appellate Court has properly framed the points for consideration and re-appreciated the entire evidence on record. Hence, on these grounds, she prays to dismiss the appeal. 13. This Court admitted the appeal to consider the following substantial questions of law. “i) Whether the finding of the first appellate Court that the identity of the suit property is not proved by the plaintiff and consequently allowing the appeal filed by the defendant and setting aside the judgment and decree passed by the Trial Court, whereby the trial Court decreed the suit of the plaintiff is sustainable in law? ii) When identity and description of the suit property is not disputed by the defendant, whether the lower appellate court is justified in allowing the appeal - 8 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 preferred by the defendant and setting aside the judgment and decree passed by the trial Court on the ground that identity of the suit property is not established by the plaintiff?” 14. The substantial question Nos.i and ii are interlinked, and they taken together for a common discussion to avoid the repetition of facts. 15. The plaintiff has filed a suit for declaration and permanent injunction contending that the suit schedule property is the ancestral property of the plaintiff and the partition was affected between the brothers of the plaintiff’s father, and in the said partition of the suit schedule property fell to the plaintiff’s father share. The plaintiff’s father got converted the said land into non agricultural land, formed sites, and sold some of the sites, and retained the suit schedule property. It is contended that the defendant is the neighbour of the plaintiff. The defendant is trying to interfere with the peaceful possession and enjoyment of the suit schedule property. 16. The plaintiff, to prove that the plaintiff is the owner of the suit schedule property, produced the documents marked - 9 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 as Ex.P.1 to Ex.P.5 and also examined one witness as PW.2. On the other hand the defendant examined as DW.1, he reiterated the written statement averments in the examined-in-chief and to proved his possession over the suit schedule property examined two witness as DW.2 to DW.3, and marked two documents. The Trial Court, after recording the evidence, has decreed the suit of the plaintiff, holding that the plaintiff is the absolute owner of the suit schedule property and also held that the plaintiff is in lawful possession and enjoyment of the suit schedule property as of the date of filing the suit, and also proved the interference by the defendant, and granted permanent injunction restraining the defendant from obstructing the peaceful possession of the plaintiff over the suit property and consequently decreed the suit of the plaintiff vide judgment dated 05.08.2015. The defendant, aggrieved by the impugned judgment passed in OS.No.93/2011 preferred an appeal in RA.No.60/2015 on the file of the Senior Civil Judge and JMC, Nanjangud. 17. The First Appellate Court, after hearing the learned counsel for both parties, framed the following points for consideration: - 10 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 “1. Whether the appellant proved that the Judgment and Decree of the trial court is illegal, erroneous, perverse and called for interference of this court? 2. What Order?” 18. The First Appellate Court, on re-assessing the verbal and documentary evidence, answered point No.1 in the affirmative and point No.2 as per the final order. The appeal filed by the defendant was allowed, the judgment and decree passed by the Trial Court was set aside and suit of the plaintiff was dismissed vide judgment dated 24.09.2016. 19. From a perusal of the judgment passed by the First Appellate Court, it discloses that the Appellate Court has not framed the points for consideration properly and has not re- appreciated the entire evidence on record. Further, the First Appellate Court has not assigned the reasons for reversing the judgment and decree passed by the Trial Court, except extracting the submissions, and depositions. The plaintiff examined two witnesses and the defendant examined three witnesses and produced the documents. The First Appellate Court has not even considered the evidence led by the parties properly. The First Appellate Court has not re-appreciated the - 11 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 entire evidence on record. The First Appellate Court being the final fact finding Court, is required to re-appreciate the entire evidence on record. The impugned judgment passed by the First Appellate Court does not comply with Order 41 Rule 31 of CPC. Thus, the First Appellate Court has not applied its mind, the matter requires re-consideration by the First Appellate Court. 20. In view of the above discussion, I answer substantial question No.i in the negative, insofar as identity and description of the suit schedule property are concerned this Court will not go into substantial question No.ii as this Court is remanding the matter to the First Appellate Court, and substantial question No.ii does not arise for consideration. 21. Accordingly, I proceed to pass the following: ORDER i) The appeal is allowed. ii) The judgment and decree passed in RA.No.60/2015 dated 24.09.2016 by the learned Civil Judge and JMFC, Nanjangud, is set aside. - 12 - NC: 2025:KHC:14237 RSA No. 2140 of 2016 iii) The appeal in RA.No.60/2015 is restored to its original position, and the First Appellate court is directed to frame the points for adjudication, and thereafter pass the judgment in compliance with Order 41 Rule 31 of CPC; iv) It is made clear that this Court has not made any adjudication on merits in issue; v) The parties are directed to appear before the First Appellate Court on 16.06.2025 without awaiting any notice; vi) The office is directed to transmit the records to the First Appellate Court; vii) All the contentions of the parties are kept open. Sd/- (ASHOK S.KINAGI) JUDGE PNV List No.: 1 Sl No.: 9