- 1 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 12TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO.309 OF 2006 (DEC) BETWEEN: KARNATAKA PAINTS AND ALLIED PRODUCTS GOKUL ORAD, HUBBALLI, A REGISTERED PARTNERSHIP FIRM REP. BY ITS PARTNER, SRI. H. BASAVARAJ, AGE: 67 YEARS, R/O. NO. C-37, INDUSTRIAL ESTATE, GOKUL ROAD, HUBBALLI-580020. …APPELLANT (BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE) AND: 1. KARNATAKA STATE SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD, A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, BY ITS GENERAL MANAGER, ADMINSITRATIVE OFFICE BUILDING, INDL. ESTATE, RAJAJINAGAR, BENGALURU-560010. 2. CHIEF MANAGER K.S.S.I.D.C. INDUSTRAIL ESTATE, GOKUL ROAD, HUBBALLI-580020. 3. N.S. KRISHNA AGE: 60 YEARS, CHIEF MANAGER, KSIDC, R/O. NO. 33, 2ND MAIN, J.B. KAWAL INDUSTRIAL AREA, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.18 10:35:33 +0530 - 2 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 INDUSTRIAL WORKERS LAYOUT, BENGALURU-560096. 4. SMT. N.V. S. PHANI W/O. N.S. KRISHNA, AGE: 53 YEARS, R/O. NO. 33, 2ND MAIN, J.B. KAWAL INDUSTRIAL AREA, INDUSTRIAL WORKERS LAYOUT, BENGALURU-560010. …RESPONDENTS (R1-HELD SUFFICIENT; R2-NOTICE SERVED; R3 AND R4-NOTICE DISPENSED WITH) THIS RSA IS FILED UNDE SECTION 100 OF CPC, PRAYING TO CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.11.2005 PASSED BY THE CIVIL JUDGE (S.D.) HUBBALLI IN R.A.NO.313/2002 IN SO FAR AS IT RELATES TO MODIFYING THE JUDGMENT AND DECREE DATED 05.10.2002 PASSED BY THE I ADDL. CIVIL JUDGE (J.D.) HUBBALLI IN O.S.NO.119/1996 HOLDING THAT THE 4TH RESPONDENT IS DECLARED TO BE THE OWNER IN RESPECT OF THE PORTION OF THE SUIT SCHEDULE LAND, IN THE INTEREST OF JUSTICE. THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C M JOSHI ) Heard the learned counsel appearing for the appellant. None appears for the respondent. 2. This Court notices that despite issuance of Court notice to the respondents, they have not appeared before this Court. The substantial question of law that was framed on 26.09.2006 reads as below: “Whether the lower appellate Court was justified in reversing the judgment and decree of the trial court holding that defendant-4 is the owner of the area when there was no claim in respect of the said property?” 3. The factual background of this second appeal may be summarized as below: 4. The plaintiff happens to be a registered partnership firm and has a small scale industry. The respondent No.1- KSSIDC is established for promoting and assisting the small scale industries in the State of Karnataka. Under one of the schemes formulated by the defendant No.1, an industrial shed - 4 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 with factory building and open site bearing No.C37 in CTS No.4782 at MTS industrial Estate Hubli, measuring 91 ft east- west and 54 ft north-south bounded by the road on east and north and other industrial sites on the remaining sides, was given on lease to the plaintiff under a lease deed dated 15.10.1988. Later, the said property was sold in favour of the plaintiff’s partnership firm under registered sale deed dated 29.03.1990 for a valuable consideration. The plaintiff was in possession of the suit property since then and he became the absolute owner since the date of the sale deed. Later, the plaintiff came to know that the defendant No.1 had entered into an agreement of lease with the wife of defendant No.3/Deputy Manager, KSSIDC in respect of an area measuring 8 ft x 10 ft. While the defendant No.3 was working under the defendant No.1, a small building was also constructed on the western side of the site measuring 8 ft x 10 ft in suit property wherein a Xerox machine etc., was placed and business was carried on. However, that was given up later. Being aggrieved by the said allotment to the defendant No.4, the plaintiff filed a suit in O.S.No.703/1992 seeking mandatory injunction for allotment of the open site, which is part of the suit property, in favour of the plaintiff. The - 5 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 said suit was filed under the mistaken fact that the open space towards north by the side of the road was not allotted to the plaintiff. Later, the plaintiff came to know that it was a mistaken identification of the property and therefore, he did not press the said suit. Hence, a fresh comprehensive suit was filed wherein declaration of the entire site, which was under the sale deed was sought. The plaintiff contended that the allotment of 8 ft X 10 ft in favour of the defendant No.4 was illegal and the officials of the defendant No.1 are obstructing and are trying to dispossess the plaintiff from the suit schedule property and as such, he is entitled for the declaration. 5. After service of summons, the defendant No.1 and 2 appeared through their counsel and filed their written statement, but defendant No.3 and 4 did not appear before the trial Court and as such, they were placed ex-parte. The defendant No.1 and 2, in their written statement, contended that the plaintiff is in possession of the property which is mentioned in the lease deed and they also admitted that the sale deed has been executed on 29.03.1990. It was contended that the total area sold was 384.28 sq.mtrs and the plaintiff cannot claim any more land than - 6 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 the total area given to him. It was further contended that there is no such property belonging to the plaintiff on the northern side abutting the road and therefore, the suit is devoid of any merits. They took contention that the measurements would prevail, but not the boundaries. 6. On the basis of the above contentions, the Trial Court framed the following issues: “ISSUES i) Whether plaintiff proves that, it is the owner of suit property measuring east-west 91’ and north-south 54’? ii) Whether plaintiff proves that, it is in possession of entire suit property barring as area of 8’x10’? iii) Whether suit is hit by order 2 rule 2 C.P.C.? iv) Whether suit is bad for non-joinder of necessary party? v) Whether plaintiff is entitled for the relief’s sought for? vi) What order or decree?” - 7 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 7. After the trial, the Trial Court held issue Nos.1, 2 and 5 in the affirmative, issue No.3 in the negative and decreed the suit. 8. Being aggrieved, defendant No.1 went in appeal before the Senior Civil Judge, Hubballi in R.A.No.313/2002 and by judgment dated 19.11.2005, the First Appellate Court allowed the appeal in part and excluded the shed measuring 8 ft x 10 ft which was constructed on the northern side of the site allotted to the plaintiff. 9. Being aggrieved, the appellant/plaintiff is before this Court. 10. The learned counsel appearing for the appellant would submit that it is the cardinal principle of law that if there is any dispute between the measurement and the boundaries, the boundaries would prevail. In this regard, he places reliance on the judgment in the case of Subhaga and others vs. Shobha and others1. It is submitted that the First Appellate Court fell in error while considering the provisions of Order II Rule 2 of CPC. It is submitted that at no point of time, the plaintiff had given up 1 (2006) 5 SCC 466 - 8 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 his claim in respect of the area measuring 8 ft x 10 ft and the First Appellate Court wrongly construed not pressing of the earlier suit as a consent and giving up the claim over the same. Therefore, he submits that the First Appellate Court fell in error in modifying the decree of the Trial Court. 11. Therefore, the fundamental question that is raised before this Court is “Whether by not pressing the earlier suit filed by the plaintiff, he had given up his claim in respect of the portion of the suit schedule property i.e., 8 ft x 10 ft which was allotted to defendant No.4”. 12. It is difficult to understand the reasoning of the First Appellate Court which has invoked the provisions of Order II Rule 2 of CPC. In paragraph No.16 of the impugned judgment, it was noted that the learned counsel for the defendant had contended that plaintiff has not sought all the reliefs and therefore, the decree cannot be given to the plaintiff. It was the contended that the present suit was only for a declaration and no relief of mandatory injunction was sought by the plaintiff. The prayer made in the present suit reads as below: “a) That it be declared that the entire suit property is of the ownership of the plaintiff. - 9 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 b) Costs of the suit be awarded. A decree in the above terms may kindly be passed in favour of the plaintiff.” 13. It is not known what was the prayer made in the earlier suit filed by the plaintiff which was ultimately dismissed as not pressed. As per the plaint averments, the plaintiff had sought for declaration that the northern portion after the Shed measuring 8 ft x 10 ft was also belonging to the plaintiff. That does not mean that he had relinquished his right in respect of the shed measuring 8 ft x 10 ft. Therefore, if at all the suit was to be dismissed under Order II Rule 2 of CPC, it was applicable to a suit that may be filed after obtaining a declaration. In the present suit, the plaintiff has sought for declaration only. This would mean that in any subsequent suit, the plaintiff cannot seek the possession of the shed measuring 8 ft x 10 ft, which he has not sought now. The First Appellate Court holds that the provisions of Order II Rule 2 is not applicable. Even then, it excludes the shed measuring 8 ft x 10 ft which was allegedly allotted to defendant No.4. Obviously, defendant No.4 had not appeared before the Trial Court or the First Appellate Court and - 10 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 therefore, no such contention was raised that the said shed belongs to defendant No.4. Therefore, by invoking the provisions of Order II Rule 2, concluding that the plaintiff had given up his right in respect of the shed measuring 8 ft x 10 ft appears to be illogical and unconvincing reason. Obviously, perversity has crept in the said finding. Hence, the finding of the First Appellate Court cannot be sustained. 14. A perusal of the judgment of the Trial Court would show that it has categorically come to the conclusion that the entire site as mentioned within the boundaries shown in the sale deed belongs to the plaintiff and once such sale deed was executed, defendant No.1 could not have allotted any shed or portion of the property to defendant No.4. Defendant No.1 did not have any right in the said shed portion. Hence, could not have allotted the same or sold the same to anybody else. Therefore, defendant No.1 had no right, title or interest in respect of the said portion when it allotted the said portion to defendant No.4. 15. The Trial Court also comes to the conclusion that the boundaries prevail for the measurement and since the sale deed mentioned that on the northern side of the plot allotted to the - 11 - HC-KAR NC: 2025:KHC-D:15425 RSA No. 309 of 2006 plaintiff, there is a road and as such the entire property belongs to the plaintiff. Hence, the judgment of the First Appellate Court is unsustainable and the judgment of the Trial Court deserves to be upheld. Hence, the substantial question of law is answered in the negative. Consequently, the following order is passed: ORDER i) The appeal is allowed. ii) The impugned judgment of the First Appellate Court in R.A.No313/2002 is hereby set aside. iii) The judgment and decree passed by the Trial Court in O.S.No.119/1996 is confirmed. SD/- (C M JOSHI) JUDGE YAN:Para 1 to 5 SSP: Para 6 to till end CT:PA LIST NO.: 1 SL NO.: 7