- 1 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 122 OF 2025 (INJ) BETWEEN: H N ABDUL REHAMAN S/O IMAM SAB AGED ABOUT 61 YEARS R/O HARANAHALLI VILLAGE SHIVAMOGGA TQ AND DIST - 577 201 …APPELLANT (BY SRI. S.B. HALLI, ADVOCATE) AND: ABDUAL NAZEER S/O IMAM SAB AGED ABOUT 63 YEARS R/O BEHIND HARANAHALLI BUS STAND HARANAHALLI VILLAGE SHIVAMOGGA TQ AND DIST - 577 201 …RESPONDENT (BY SRI. KASHINATH J.D., ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED16.12.2024 PASSED IN RA NO.12/2024 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 31.01.2024 PASSED IN OS NO.830/2017 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SHIVAMOGGA. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 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. Halli Shantappa Basappa, learned counsel for the appellant and Sri. Kashinath J.D. learned counsel for the respondent. 2. Defendant is the appellant in the second appeal challenging the validity of the judgement passed in O.S. No.830/2017 confirmed in R.A. No.12/2024. 3. Facts in the nutshell for disposal of the present appeal are as under: A suit came to be filed by the plaintiff for permanent injunction in respect of the following immovable property which is more fully described hereunder and hereinafter referred to as ‘suit property’ for the sake of convenience: - 3 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 SCHEDULE Agricultural land bearing Sy.No.8/P3 measuring 4 acres situated at Gollarakoppa Village, Haranahalli Hobli, Shivamogga Taluk bounded by:- East : Hitturu Village Border West : Land of the defendant North : Remaining land in the same Sy.No.8 South : Remaining land in the same Sy.No.8. 4. Plaintiff contended that he is the absolute owner in possession of the suit property which has been granted to the plaintiff and 'Saguvali Chit' was issued on 26.09.1994. It was also contended a sketch was prepared at the time of issuing the 'Saguvali Chit' and boundaries were demarcated. Further, defendant who is none other than the brother of the plaintiff has also been granted 3-00 acres of land to the Western side of the suit property. Defendant in the guise of occupying his land is trying to dispossess the plaintiff and therefore suit for injunction was filed by the plaintiff. - 4 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 5. Pursuant to the suit summons, defendant entered appearance denying the plaint averments and contended that the property of the plaintiff lies into the forest area and he had already filed a suit in O.S. No.540/1997 seeking relief of permanent injunction by stating that Tashildar has granted 4-00 acres of land and that suit came to be dismissed for non prosecution and therefore, present suit is not maintainable. 6. It is also contended that another suit has been filed by the defendants in O.S.No.645/2012 which is now pending before the Civil Judge (Senior Division) in R.A. No.119/2017 and therefore plaintiff cannot maintain the present suit which is filed in O.S. No.830/2017 and sought for dismissal of the suit. 7. Based on the arrival contentions of the parties, Trial Court raised necessary issues and after considering the oral and documentary evidence on record, decreed the suit of the plaintiff. - 5 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 8. While so decreeing the suit of the plaintiff, the Trial Court has taken note of the admission made by the DW-1 wherein he admits the Ex.P5 which is the Sketch prepared by the Government at the time of granting the 'Saguvali chit'. 9. One of the witnesses examined on behalf of the defendant namely Rajappa (DW2) in his cross-examination admits that to the Eastern side of the land in Sy.No.8/P3, there lies the boundary of Hitturu Village and to the Western side of the said land, property of the defendant is situated. 10. Being aggrieved by the same, defendant filed an appeal before the First Appellate Court in R.A. No.12/2024. 11. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and dismissed the appeal. - 6 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 12. Being further aggrieved by the same, defendant is before this Court in this appeal on the following grounds:  It is submitted that, the judgments and decree of the courts below are highly illegal, besides being erroneous. As such same is liable to set-aside.  It is submitted that, the trail court ought to have dismissed the suit of the respondent, because of that, the schedule property is a forest land and he was filed O.S NO 540/1997 and the forest department appeared and filed written statement and specifically denied the title of the respondent and also contended that, the respondent has no right title over the property in question and ultimately the said suit of the respondent was dismissed for non prosecution and further the trail court has failed to considered that, the respondent has shown the boundaries in O.S NO 540/1997 and in this suit is entirely different and therefore, the simpliciter for injunction is not maintainable as the title of the suit schedule property was in cloud.  It is submitted that, the trail court was not framed the necessary issues in the suit with regard to as to whether without declaration suit for injunction filed by the respondent/plaintiff is maintainable? As such the judgement and decree of the trail court is not at all sustainable in the eye of law. - 7 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025  It is submitted that both the courts below have failed to considered that, the suit schedule property is alleged to granted to the respondent and earlier he was filed suit against the forest department and the forest department has denied the property of the plaintiff/ respondent and as the respondent ought to have made forest department as parties in the suit.  It is submitted that, both the courts below have not properly appreciated the oral and documentary evidence of the appellant and also not properly appreciated the legal possession and evidence produced on record, in facts the respondent is not in possession of the suit schedule property. As such the suit of the plaintiff is not maintainable and same is liable to be dismissed.  It is submitted that, the evidence of the appellant is that, the suit schedule property was not granted to the respondent and the land granted to him in Sy. No.8 and schedule property is belongs to Forest and my land belongs to western side of the schedule property and at point of time the forest department has not allowed the respondent to cultivate the land in dispute. This aspect of the matter was not considered by the both the courts below while decreeing the suit of the respondent.  Viewing from any angle the judgements and decree of the courts below are not at all sustainable either in law or on facts and are liable to be set aside. - 8 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025  It is submitted that, the above appeal is filed in time. 13. In the appeal, the following substantial questions of law raised : a) WHETHER, the trail court was right in law justifying in decreed suit for simpliciter permanent injunction when the respondent has not furnished correct boundaries and the title of the respondent was in dispute? b) WHETHER, the lower appellate court was also right in law justifying in confirming the judgement and decree of the trail court on the grounds that the appellant has not made any efforts to examine the forest officer in order to clear picture of the schedule property ? c) WHETHER, the both the courts below have right in law justifying in not properly considered the oral and documentary evidence of the appellant while decreeing the suit of the respondent? d) WHETHER, the both the courts below have right in law justifying in decreed the suit of the respondent without considered the proviso to section 11 of Civil Procedure Code, the suit of the respondent is hit by principles of Res-Judicata? - 9 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 e) WHETHER, the both the courts below have right in law justifying in decreed suit without considered that, the suit of the respondent was suffered for non-joinder of necessary party? 14. Sri. Halli Shantappa Basappa, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum, it is the appellant who has approached the Court at an earliest point of time by filing O.S. No.645/2012. 15. Thereafter, as an afterthought, the plaintiff has filed a suit against the forest officials in O.S.540/1997 which came to be dismissed for non prosecution. 16. He would further contented that unable to establish his right against the forest Officials, the plaintiff has now encroached upon the suit property of the defendant which is on the Western side. Therefore, decreeing of the suit by the Trial Court holding that plaintiff is in possession of 4-00 acres of land in the suit - 10 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 property is incorrect and sought for admitting the appeal for further consideration. 17. He would also contend that his suit in O.S.No.645/2012 no doubt came to be dismissed but the matter is now pending for consideration. 18. Therefore, upholding the decree passed by the Trial Court confirmed by the First Appellate Court would act detrimental to his interest in pending appeal as there is a serious boundary dispute and sought for admitting the appeal for further consideration. 19. Per contra, Sri Kashinath J.D., learned counsel for the respondent supports the impugned judgment. 20. Having heard the arguments of both sides, this Court perused the material evidence on record meticulously. 21. On such perusal of material on record, it is crystal clear that the plaintiff is claiming the right over the - 11 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 suit property by virtue of a grant made by the Government. 'Saguvali Chit' is placed on record. Along with the Saguvali Chit, there was a survey conducted by the Governmental Authority which is annexed to the Saguvali Chit. Said Survey Sketch is marked at Ex.P5 which has been admitted by DW-1 in his cross- examination. 22. All that the plaintiff has sought for in his suit is to protect his lawful possession which has been disturbed by the defendant by way of a decree of permanent injunction. 23. Learned Judge in the Trial Court as well as First Appellate Court bestowed their attention of the probative value of the 'Saguvali Chit' and the survey sketch prepared pursuant to 'Saguvali Chit' Both Courts also took into consideration that there is another suit filed by defendant which is now pending R.S.A. No.1650/2022 have rightly - 12 - HC-KAR NC: 2025:KHC:34598 RSA No. 122 of 2025 decreed the suit of the plaintiff which requires no interference in this appeal. 24. However, the interest of the defendant would be protected if an observation is made that if he succeeds in the R.S.A. No.1650/2022, the injunction that has been granted in favour of the plaintiff in respect of this suit property shall be subject to result of the regular second appeal filed by the defendant. 25. With that observation, following Order is passed: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 57 CT-SG