- 1 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1122 OF 2024 (INJ) BETWEEN: 1. SMT. LEELA C/O. J. S. MALLIKARJUNA, AGED ABOUT 72 YEARS, 2. SMT. ANNAPOORNA D/O. LATE SHIVANNA, AGED ABOUT 67 YEARS, 3. SRI. J. S. PRAKASH S/O. LATE SHIVANNA, C/O. J. S. BHASKAR, AGED ABOUT 65 YEARS, 4. SRI. J. S. NATARAJU C/O. J. S. BASKARA, AGED ABOUT 63 YEARS, 5. SMT. J. S. SHYLA C/O. J. S. BHASKAR, AGED ABOUT 61 YEARS, 6. SMT. JAGADAMBA W/O. LATE BHASKAR, AGED ABOUT 37 YEARS, 7. CHANDU SHREE. J. B. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 D/O. LATE BHASKAR, AGED ABOUT 19 YEARS, 8. HITHAISHINI D/O. LATE BHASKAR, AGED ABOUT 16 YEARS, (APPELLANT NO. 8 IS MINOR, REPRESENTED BY HER MOTHER JAGADAMBA APPELLANT NO. 6 HEREIN) APPELLANTS NO1 TO 8 ARE RESIDING AT JAVAGAL MARKET ROAD, JAVAGAL, ARSIKERE TALUK, HASSAN DISTRICT - 573 125. 9. SMT. SHOBHA W/O. LATE G. S. MALLIKARJUNA, AGED ABOUT 60 YEARS, 10. SHILPA D/O. LATE G. S. MALLIKARJUNA, AGED ABOUT 46 YEARS, 11. RANJITHA D/O. LATE G. S. MALLIKARJUNA, AGED ABOUT 43 YEARS, APPELLANTS NO.9 TO 11 ARE RESIDING AT MARKET ROAD, JAVAGAL HOBLI, ARSIKERE TALUK, HASSAN DISTRICT - 573 125. …APPELLANTS (BY SRI. SRIKANTH M, ADVOCATE) - 3 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 AND: SRI. RUDRAPPA SINCE DEAD BY HIS LRS 1(A). SMT. PAVATHAMMA W/O LATE RUDRAPPA AGED ABOUT 65 YEARS R/AT JAVAGAL VILLAGE OPPOSITE TO GRAM PANCHAYATH OFFICE JAVAGL HOBLI, ARSIKERE TLUK, ARSIKERE TALUK HASSAN DISTRICT - 573 125. 1(B). SMT. M.R. PUSHPALATHA, W/O M. RAJU D/O LATE RUDRAPPA AGED ABOUT 46 YEARS R/AT JAVAGAL VILLAGE OPPOSITE TO GRAM PANCHAYATH OFFICE JAVAGL HOBLI, ARSIKERE TLUK, ARSIKERE TALUK HASSAN DISTRICT - 573 125. 1(C). SMT. M.R. SUSHEELA W/O PRABHAKAR D/O LATE RUDRAPPA AGED ABOUT 44 YEARS R/AT JAVAGAL VILLAGE OPPOSITE TO GRAM PANCHAYATH OFFICE JAVAGL HOBLI, ARSIKERE TLUK, ARSIKERE TALUK HASSAN DISTRICT - 573 125. …RESPONDENTS (BY SRI. P. RUDRAPPA, ADVOCATE) - 4 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.02.2024 PASSED IN RA NO.80/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARASIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.10.2018 PASSED IN OS.No. 131/2008 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, ARASIKERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Srikanth M., learned counsel for the appellants and Sri.P.Rudrappa, learned counsel for respondents. 2. Legal representatives of defendants in O.S.No.131/2018 are the appellants challenging the validity of decreeing of the suit of the plaintiff in respect of the following immovable property (hereinafter referred to as suit property): - 5 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 CgÀ¹ÃPÉgÉ vÁ®ÆèPÀÄ, eÁªÀUÀ¯ï UÁæªÀÄzÀ°ègÀĪÀ dAdgï £ÀA:739 C¸É¸ïªÉÄAmï £ÀA: 1079 gÀ°è EgÀĪÀ ¥ÀÆ:¥À 14 Cr zÀ:G 60 CrUÀ¼ÀÄ «¹ÛÃtð EzÀgÀ°è ªÀÄ£É ªÀÄvÀÄÛ SÁ° ¤ªÉñÀ£À EgÀÄvÀÛzÉ. EzÀPÉÌ ZÉPÀÄ̧A¢:- ¥ÀƪÀð :²ªÀtÚ£À ªÀÄ£É ¤ªÉñÀ£À. ¥À²ÑªÀÄ:«±ÉéñÀégÀAiÀÄå£À ªÀÄ£É. GvÀÛgÀ : 10 Cr SÁ° ªÀÄvÀÄÛ £ÀAvÀgÀ gÀ¸ÉÛ. zÀQët : ²ªÀtÚ£À d«ÄãÀÄ 3. Validity of the judgment and decree passed by the Trial Court was challenged before the First Appellate Court in RA No.80/2018 by the defendants. 4. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and on reappreciation of the material evidence on record, dismissed the appeal of the defendant. 5. Thereafter, defendant is before this Court in the second appeal. 6. Facts which are utmost necessary for disposal of the second appeal are as under: - 6 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 6.1. Plaintiff claim that he is the absolute owner in possession of the suit property having purchased the same from his previous owner namely J.P.Narasimhaiah through a registered sale deed dated 13.05.1997. 6.2. Portion of the property was sold to defendants by virtue of a registered sale deed marked at Ex.D.2. It is the specific case of the plaintiff that in between the house property of the plaintiff and the property that has been sold to defendants vide Ex.D.2, there existed a vacant space which was not subject matter of the sale deed in Ex.D.2 and when defendants started interfering with the vacant possession of the plaintiff in respect of vacant possession, suit came to be filed. 7. Pursuant to the suit summons, defendants entered appearance and filed written statement denying the plaint averments in toto. 8. Defendants maintained that the boundaries mentioned in the sale deed executed by the plaintiff in - 7 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 favour of defendants vide Ex.D.2 clearly mentions that on the southern side of the defendants’ property, there lies the house property of the plaintiff and there is no mention of the vacant space and the house property. The defendants had no objection with regard to possession of the plaintiff in respect of the house property but in respect of the vacant space, plaintiff cannot maintain the suit for injunction and thus sought for dismissal of the suit. 9. In view of the rival contentions of parties, learned Trial Judge raised necessary issues and after considering the oral and documentary placed on record, decreed suit of the plaintiff. 10. Being aggrieved by the same, defendant filed an appeal before the First Appellate Court in RA No.80/2018. 11. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and on reappreciation of the material evidence on record, - 8 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 dismissed the appeal of the defendants inter alia holding in paragraph Nos.22 to 26 as under: “22. A perusal of cross-examination of PW.1 shows that PW.1 during his cross-examination admits that all the owners of the six houses are entitled for property measuring 14 x 60 feet. It is seen that plaintiff has admitted that there are totally six tenements and that each tenement measures 14 x 60 feet. Here it is seen that though the plaintiff has admitted written statement averments, he has denied the contention of the defendants that he has put up construction in the entire 14 x 60 feet and as such there is no vacant land behind his property. He has nowhere admitted the contention of the defendants that he has tried to encroach upon the land of the defendants. 23. Similarly, it is seen that PW.2 has also mentioned with regarding to existence of vacant land behind the house of the plaintiff and has denied the contention of the defendant that the plaintiff has put up construction in the entire property purchased by him. A suggestion is put to PW.2 that the cattle shed of the 1st defendant has fallen and only stone pillars are now available, to this suggestion the witness has stated that the entire lis started when the defendants tried to erect stone pillars. A suggestion is put to PW.2 that the 1st defendant had purchased 3½ guntas of land from Narasimhaiah on 12.6.1985 and that on 3.9.1979 he purchased house and vacant land which is admitted by the witness. PW.2 has admitted the suggestion that the property in respect of which the litigation is being conducted is the suit property. Mere admission of PW.2 would not be sufficient to state that the suit property is in - 9 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 the possession of the 1st defendant or the defendants herein in the absence of documentary evidence to prove the same. As discussed supra, the document produced with I.A.No.5 is an unregistered sale deed dated 24.6.1983 and not registered sale deed dated 12.6.1985. In this case, a perusal of documentary evidence adduced by the defendants shows that the aforesaid sale deed dated 12.6.1985 is marked as Ex.D.2. The said document shows that under Ex.D.2 the property purchased is Sy.No.103/2 measuring 3½ guntas. The said property is bounded on East by land of P.R. Krishnamurthy, West by Galli and later site of Nagaraju, South by the residential house of the defendants and North by land of J.B. Narasimhaiah. A joint reading of Ex.P.1 and D.2 clearly shows that the vacant land of the plaintiff and the land of the defendants purchased under Ex.D.2 are adjoining lands. Hence, it is clear that both own vacant lands adjoining each other. When the defendants claims that plaintiff has put up constructions on his entire land, it is for the defendants to prove the same but no such document is produced to prove the said contentions. The documentary evidence adduced by the defendants only shows that they are also adjoining owners of vacant land lying adjacent to the land of the plaintiff. They have neither proved their possession over the suit property nor have they proved that plaintiff has put up construction over his entire property. 24. As this is a suit for bare injunction, what the plaintiff needs to prove is his prima facie possession as on the date of filing the suit and interference to the same by the defendants. As far as prima facie possession is concerned, he has produced his title deeds, revenue documents and ocular evidence of himself and two other witnesses of whom one is the Court Commissioner who has - 10 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 conducted the spot inspection. To prove interference the evidence of PW.2 has been adduced wherein PW.2 has clearly stated that the entire litigation started when the defendants tried to put up stone pillars. Hence, interference is also proved by the plaintiff. 25. The contention of the defendants with regard to the vendor of the plaintiff not having title over the land that was sold under Ex.P.1 is concerned and that the plaintiff has tried to encroach upon the land of the defendants is concerned, it is seen that defendants have not initiated any action in any competent Court of law to challenge the sale deed of the plaintiff (Ex.P.1) or to seek any relief against the plaintiff with regard to the alleged act of encroachment. Except for oral assertions of the defendants there is nothing on record to prove the written statement averments with regard to any attempt made by the plaintiff to encroach upon the land of the defendants. The defence taken by the defendants in the written statement clearly shows an act of interference with the plaintiff's peaceful possession and enjoyment of the suit property. 26. The Trial Court has given proper and sufficient reasonings for the conclusions arrived at by it. Hence, it is seen that there is no illegality or perversity in the finding given by the learned Trial Judge to warrant interference at the hands of this Court. It is seen that the Trial Court has properly appreciated the oral and documentary evidence available on record. The Trial Court has given sufficient reasonings for the findings arrived at. There is no illegality or perversity in the findings of the Trial Court to warrant interference at the hands of this Court. Hence, I answer point No.1 in the Affirmative, point Nos.2 and 3 in the Negative.” - 11 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 12. Being further aggrieved by the same, defendant has filed the present appeal on the following grounds and substantial questions of law:  It is submitted that the impugned judgment and decree passed by the trial court and the first appellate court are perverse, arbitrary, illegal and liable to be set aside.  That, both the trial Court and first appellate Court have failed to consider that, by virtue of the registered sale deed dated 12-06-1985 executed by Narasimhaiah in favour of Shivanna (original Defendant No. 1) to an extent of 3 ½ gunta land in Sy No. 103 which is situated towards the northern side of the suit schedule property, the defendant has acquired the said land, the vendor of the plaintiff lost his right over the vacant portion mentioned in the EX P-1, i.e., suit schedule property as its absolute owner. Hence, the sale deed executed by him in favour of the plaintiff will not subsist and the plaintiff will not get any manner of right under the said sale deed over the entire extent of suit schedule property. - 12 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024  The defendant has clearly taken a stand that the plaintiff has constructed the house to the entire extent and there is no vacant space left by the plaintiff and the said vacant space belongs to the defendants and the plaintiff trying to knock off the property of the defendants. Further, to establish the said fact the defendants have produced Ex D-2 which is a sale deed dated 12-06-1985 wherein the defendants have purchased 3½ Gunta land, from J.B.Narasimhaiah, the said land is situated towards the northern side of the suit schedule property, in which the plaintiff is claiming his right. Further, from perusal of the commissioner report also it is clear that, the plaintiff has constructed house in entire extent of the suit schedule property i.e., east to west 14 and north to south 45 and encroached portion i.e., east to west 14 and north to south 13. If both the measurement is calculated it come to east to west 14 and north to south 58 feet. This is the suit schedule property. This aspect clarifies that the plaintiff has constructed his house on entire extent and there is no vacant space left by the plaintiff. Further, the commissioner report showing as encroachment by both the plaintiff and defendants are totally false. There is no such encroachment by any of the parties and there is no record by any government authority to prove the encroachment. As - 13 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 such the Judgment of trial Court and first appellate court are liable to be set-aside.  It is submitted that both the courts below have concurrently erred in law in not subjectively evaluating the evidence and material on record and have also mis-construed the pleadings of the parties.  The findings recorded by the trial court are not only contrary to the pleadings on record but also contrary to the well-established principles of law that the burden of proof is upon the person who approaches the Court, weakness of the defendant cannot be considered as trump card for the plaintiff. Further, it has been specifically held by this Hon'ble Court and Hon'ble Apex Court that in a suit for disputed property, the burden to prove title and possession to the land squarely falls on the plaintiff.  The first appellate court has utterly failed to consider the principles laid down by the Hon'ble Supreme Court in the case of ANATHULA SUDHAKAR US P. BUCHIREDDY reported in AIR 2008 SC 2033, wherein the Hon'ble Apex Court has addressed the scope of a suit for prohibitory injunction relating to immovable property and has lucidly explained the general principles in this regard. - 14 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024  That when the plaintiff and defendants are both claiming to hold title to the vacant space towards the northern side of the suit schedule property and as there was abundant evidence to establish the defendants title, both the court below was not justified in holding that plaintiff is in possession of suit property. Both the courts below have concurrently erred in law regarding whether a suit for a bare injunction could proceed in the face of a serious dispute regarding title.  It is to be noted here that as a matter of law, if the appraisal of the evidence by the trial court suffers from material irregularity, which is based on in- admissible evidence or on contentions and surmises and conjectures that the First Appellate Court is entitled to interfere with the finding of facts recorded by the trial court. Unfortunately, the First Appellate Court failed to set aside the judgment of the trial court thereby the First Appellate Court failed to exercise the jurisdiction vested with it.  In view of the error committed by the First Appellate Court in not reversing the judgment of the Trial Court left with no other alternative the appellant is before this Hon'ble Court with the present Regular Second Appeal, which is clearly indicative of the fact that prima-facie the First Appellate Court did - 15 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 not discharge the duty cast on it as a Court of First Appeal. In that view of the matter the judgment and decree passed by the Trial Court would call for interference at the hands of this Hon'ble Court. SUBSTANTIAL QUESTIONS OF LAW 1. Whether the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises? 2. Whether the trial Court could have granted a decree for permanent injunction in favour of the plaintiff when the very basis of his title of the suit property was disputed by the defendants who claimed better title? 3. Whether the first appellate court is justified in not discharging the duty cast on it as a Court of first appeal? 13. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have not properly appreciated the probative value of Ex.D.2 which is the sale deed executed by the plaintiff in favour of the defendants wherein southern boundary of the property purchased by - 16 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 defendants clearly mentions that there lies the house of the plaintiff and not the vacant space and the house. 14. He would also invite the attention of this Court that a Court Commissioner came to be appointed to find out the factual aspects of the matter before the Trial Court and Commissioner has furnished a report specifically stating that the vacant space as is mentioned in the suit schedule is not available and only 14 ft. x 3 ½ feet is available which clearly shows that the plaintiff has not approached the Court with clean hands and with proper particulars which has been ignored by both the Courts while decreeing the suit of the plaintiff acting detrimental to the interest of the defendants resulting in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. 15. Learned counsel for the respondents supports the impugned judgments. - 17 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 16. Having heard the arguments of both sides, this Court perused the material on record meticulously. 17. On such perusal of the material on record, it is crystal clear that portion of the property that was sold to defendants vide Ex.D.2 and title thereof, is in occupation of the defendants cannot be decided in a suit for injunction filed by the plaintiff. 18. No counterclaim was made by the defendants nor separate suit is filed by the defendants. 19. Under such circumstances, the Trial Court taking note of the factual aspects including the Commissioner’s report, decreeing the suit of the plaintiff holding that plaintiff is the owner of the property and property sold in favour of defendants under Ex.D.2 cannot be the subject matter of the suit for injunction filed by the plaintiff and dismissed the suit. 20. Learned Judge in the First Appellate Court in the appeal filed by the defendants while reappreciating the - 18 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 material facts, has recorded a categorical finding taking note of not only the evidence of plaintiff but also the oral evidence of P.W.2 and the probative value of Ex.D.2 and dismissed the appeal of defendants. 21. Further, if the defendants are having any grievance with regard to the probative value of Ex.D.2 and if the plaintiff is trying to interfere with the rights of the defendants as per Ex.D.2, it is always open for the defendants to file appropriate comprehensive suit in accordance with law. 22. Needless to emphasize that, if any such comprehensive suit is filed and decree is passed with regard to the title of the defendants, injunction passed by the Trial Court confirmed by the First Appellate Court would be a matter that would be considered while passing such a decree and after passing such a decree, order of injunction would be subservient to the such comprehensive decree. - 19 - HC-KAR NC: 2025:KHC:39296 RSA No. 1122 of 2024 23. With that observations, this Court is of the considered opinion that appeal grounds are not sufficient to admit the appeal for further consideration. 24. Hence, following: ORDER Appeal is dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 52 CT: BHK