- 1 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1955 OF 2013 (DEC) BETWEEN: C.KENCHAPPA S/O LATE KARIYAPPA AGED ABOUT 56 YEARS R/O GUDDADATHUMMINAKATTE VILLAGE, HARIHARA TALUK – 577601. …APPELLANT (BY SRI. MANJUNATH B., ADVOCATE FOR SRI. KEMPANNA, ADVOCATE) AND: 1. GIRIJAMMA W/O LATE SIDDAPPA AGED ABOUT 59 YEARS 2. MAHADEVAPPA AGED ABOUT 44 YEARS 3. CHANDRAPPA AGED ABOUT 39 YEARS 4. NAGARAJ AGED ABOUT 34 YEARS THE RESPONDENT No.2 TO 4 ARE THE CHILDREN OF LATE SIDDAPPA, THE RESPONDENT No.1 TO 4 ARE Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 RESIDING AT G.T. KATLE VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT-577601. 5. RADHAMMA W/O MARUTHAPPA ADULT, R/O BANNIKODU VILLAGE HONNALI TALUK DAVANAGERE DISTRICT-577601. 6. MANJAPPA S/O SIDDAPPA AGED ABOUT 37 YEARS GUDDADATHUMMINAKATTE VILLAGE, HARIHARA TALUK-577601. …RESPONDENTS (BY SRI. HANUMANTHAPPA A.,ADVOCATE FOR C/R6 AND R2 TO R5; V/O DATED 01.02.2024 APPEAL DISMISSED AS ABATED AGAINST R1) THIS RSA IS FILED U/S. 100 R/W ORDER XLII OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 05.09.2013 PASSED IN R.A.NO.22/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 26.05.2011 PASSED IN O.S.NO.35/2005 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC., HARIHARA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI - 3 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 ORAL JUDGMENT This Regular second appeal is filed by the appellant challenging the judgment and decree dated 05.09.2013, passed in R.A.No.22/2011 by the Senior Civil Judge, Harihara, and the judgment and decree dated 26.05.2011 passed in O.S.No.35/2005 by the learned Principal Civil Judge and JMFC, Harihara. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for declaration and possession. It is the case of the plaintiff that the plaintiff is the absolute owner of the suit schedule property as the same was purchased in the name of C.T.Mallappa S/o Thimmappa who is the brother of plaintiff’s father, as per the registered sale deed dated - 4 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 08.03.1976, and ever since, the plaintiff’s father and his brothers have been in possession of the suit schedule property. In 1984, plaintiff’s father and his brothers got divided the properties by way of deed of partition. In the said partition, the suit schedule property fell to the share of plaintiff’s father. The plaintiff’s father passed away in 2004, leaving behind the plaintiff and other children as his legal heirs. During his lifetime, a red tiled shed, measuring 20 ft X 20 ft was constructed by the plaintiff’s father in Sy.No.3/2, and the description of the suit property is set out in the suit schedule. It is contended that defendant No.1 was working as an agricultural coolie worker under the family of the plaintiff. Defendant No.1 sought the permission of the plaintiff that he may be permitted to reside in the suit property temporarily as the suit property was a vacant property. The plaintiff and his family members permitted defendant No.1 to reside on the suit property at no cost. After a certain period, the plaintiff demanded that the defendants to vacate the suit - 5 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 property. Though defendant No.1 promised to vacate initially, later on, he started to delay to vacate the premises on one pretext or another. Defendant No.1 through defendant No.2 filed a suit claiming non-existent right in the suit property. Therefore, the plaintiff has filed a suit for declaration and possession of the suit property. Accordingly, prays to decree the suit. 3.1. The defendants filed a written statement denying the averments made in the plaint, and it is denied that the plaintiff is the absolute owner of the suit schedule property. It is contended that the suit schedule property is not within Sy.No.3/2. Defendant No.1 is an agriculturist, and he is in possession of the land bearing Gram Panchayat No.176 measuring 18.3 X 9.15 meters. The property of the plaintiff is by the side of the said house. The said property is not within the property of the plaintiff. Defendant No.1 constructed a house on the Gomala land and resides there with his family members. The plaintiff and his family members have no right, title or interest in - 6 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 the said property. The suit filed by the plaintiff is not maintainable. Hence, prays to dismiss the suit. 3.2. The trial Court, based on the pleadings of the parties, framed the following issues. 1) Whether the plaintiff proves that he is the owner of the absolute property? 2) Whether the plaintiff proves that the defendants are in permissive possession of the schedule property? 3) Whether the plaintiff is entitled for the possession of the schedule property from the defendants? 4) 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 17 documents as Exs.P1 to P17. On the other hand, defendant No.1 examined himself as DW.1, examined 3 witnesses as DWs.2 to 4 and marked 9 documents as Exs.D1 to D9. The trial Court, after recording the evidence, hearing on both sides and - 7 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the negative, issue No.4 as per the final order. The suit of the plaintiff was dismissed with costs vide judgment dated 26.05.2011. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.35/2005, preferred an appeal in R.A.No.22/2011, on the file of Senior Civil Judge, Harihara. 3.4. The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. 1) Whether the plaintiff establish that suit property is the part and parcel of Sy.No.3/2, measuring 4 acres 32 guntas? 2) Whether the plaintiff further proves the fact of handing over of schedule property to defendant No.1 on leave and license basis? 3) Whether the plaintiff is entitled for decree? 3.5. The first Appellate Court, reassessing the verbal and documentary evidence, answered point Nos.1 to 3 in - 8 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 the negative, and consequently dismissed the appeal vide judgment dated 05.09.2013 and confirmed the judgment and decree passed in O.S.No.35/2005. 3.6. The plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal. 4. Heard the arguments of Sri. Manjunath B., the learned counsel for the plaintiff and Sri. Hanumanthappa A., learned counsel for the defendants. 5. Learned counsel for the plaintiff submits that the plaintiff, to prove his title over the suit schedule property produced the documents, Ex.P1 is the registered sale deed, and he also submits that during the pendency of the suit, the Court commissioner was appointed and Court commissioner has submitted a report. He submits that the defendants filed objections to the commissioner's report, but the defendants have not examined the Court commissioner. He submits that both courts below, committed an error in relying on the Court commissioner's - 9 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 report and passed the impugned judgment. He submits that the Court commissioner's report is not conclusive. The trial Court ought to have considered other materials produced by the plaintiff. He submits that the impugned judgments passed by the courts below are contrary to the records. Hence, on these grounds, prays to allow the appeal. 6. Per contra, learned counsel for the defendants submits that though the commissioner has submitted a report, the defendants have filed objections to the commissioner’s report. The trial Court, without providing opportunity to the defendants to examine the Court commissioner, has proceeded to pass the impugned judgments. He submits that the matter may be remitted to the trial Court with liberty to the defendants to examine the Court commissioner, as the defendants have filed objections to the Court commissioner's report. Hence, on these grounds, he prays to dispose of the appeal, accordingly. - 10 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 7. This Court vide order dated 15.10.2015, admitted the appeal considering the following substantial question of law. “Whether the courts below were right in dismissing the suit of the appellant/ plaintiff on the premise that the report of the commissioner could not be taken into consideration as the commissioner was not examined by the plaintiff, in the face of the objections filed by the defendant to the commissioner’s report?” 8. Perused the records and considered the submissions of the learned counsel for the parties. 9. REG. SUBSTANTIAL QUESTION OF LAW: The plaintiff, to prove his case, plaintiff No.1, was examined himself as PW.1. He reiterated the plaint averments in the examination-in-chief. To prove the declaration of title and possession, the plaintiff has produced Ex.P1, which is the certified copy of registered sale deed, which discloses that the suit property was purchased in the name of the brother of plaintiff’s father. - 11 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 Ex.P2 is the certified copy of partition deed dated 16.04.1984, which discloses that partition was effected between the plaintiff’s father and his siblings. The plaintiff's father died, leaving behind the plaintiff as his legal heir. After his demise, the plaintiff has succeeded to the suit schedule property. The plaintiff has also produced the RTC extract marked as Exs.P3 to P10 and also defendant No.2 filed a suit against the plaintiff in O.S.No.106/2004 for perpetual injunction and the copy of the plaint in that suit is marked as Ex.P16 and the copy of the written statement filed by defendant No.2 herein in the said suit is marked as Ex.P17 and the said suit was dismissed for default and copy of the order sheet in O.S.No.106/2004 is marked as Ex.P15. The plaintiff also got issued a legal notice regarding survey marked as Ex.P14. 10. The plaintiff also examined one witness as PW.2, to prove the ownership and possession of the suit schedule property. In rebuttal, defendant No.1, examined - 12 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 as DW.1, who has denied that the plaintiff is the absolute owner and in possession of the suit schedule property. It is contended that the defendants are in possession and enjoyment of the suit schedule property and to prove the possession over the suit schedule property, examined 3 witnesses as DWs.2 to DW4. 11. During the pendency of the suit, the court commissioner was appointed, and the court commissioner, after inspection, submitted a report. The defendants have filed objections to the commissioner’s report. When the defendants have filed objections to the commissioner's report, the defendants could have examined the court commissioner. The trial court, without permitting the defendants to examine the court commissioner, placed reliance on the report of the court commissioner and dismissed the suit of the plaintiff without considering other materials produced by the plaintiff. The trial court has dismissed the suit, placing reliance on the report of the commissioner. The first Appellate Court has also confirmed - 13 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 the judgment and decree passed by the trial Court based on the report of the Court commissioner. The trial Court has not complied with provisions of Order 26 Rule 10(2) of the Code of Civil Procedure. The judgment and decree passed by the trial court is contrary to Order 26 Rule 10(2) of Code of Civil Procedure. Hence, on these grounds alone, the impugned judgments are liable to be set aside. In view of the above discussions, the matter requires reconsideration by the trial Court. In view of the above discussion, I answer the substantial question of law in the negative. 12. Accordingly, I proceed to pass the following order: ORDER i. The Regular Second Appeal is allowed. ii. The judgment and decree dated 05.09.2013 passed in R.A.No.22/2011 by the Senior Civil Judge, Harihar and the judgment and decree dated 26.05.2011 passed in O.S.No.35/2005 - 14 - HC-KAR NC: 2025:KHC:27218 RSA No. 1955 of 2013 by the learned Principal Civil Judge and JMFC, Harihar, are set aside. iii. The suit on O.S.No.35/2005 is restored to its original file. iv. The trial Court is directed to permit the defendants to examine the court commissioner and thereafter pass the judgment after considering the entire evidence on record in accordance with law. v. This court has not made any adjudication on merits in issue. vi. All the contentions of the parties are kept open. vii. Office is directed to transmit the records to the trial court. viii. The parties are directed to appear before the trial court on 22.09.2025, without awaiting any further notice. Sd/- (ASHOK S.KINAGI) JUDGE SKS List No.: 3 Sl No.: 9