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2025 DAILYLAW 41869 (KAR)

SRI ANANDAIAH v. SRI RAJAIAH

RSA/45/2022 · 2025-07-25

H P Sandesh

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.45 OF 2022 (INJ) BETWEEN: 1. SRI. ANANDAIAH, S/O BASAVAIAH, AGED ABOUT 66 YEARS, R/O MUGALI VILLAGE, MUGALI POST, BELAGODU HOBLI, SAKALESHPURA TALUK, HASSAN DISTRICT-573134. …APPELLANT (BY SRI. VIGHNESHWAR S. SHASTRI, SENIOR COUNSEL FOR SRI. DINESH M. BHAT, ADVOCATE) AND: 1. SRI. RAJAIAH, S/O SIDDAIAH, AGED ABOUT 64 YEARS, R/O SIDIGALALE VILLAGE, BELAGODU HOBLI, SAKALESHPURA TALUK, HASSAN DISTRICT-573134. 2. SRI. SHANTHARAJU, S/O SIDDAIAH, AGED ABOUT 64 YEARS, R/O SIDIGALALE VILLAGE, BELAGODU HOBLI, SAKALESHPURA TALUK, HASSAN DISTRICT-573134. …RESPONDENTS (R1 AND R2 ARE SERVED AND UNREPRESENTED) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.07.2021 PASSED IN R.A.No.2/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SAKALESHPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.12.2019 PASSED IN O.S.NO.145/2014 ON THE FILE OF THE CIVIL JUDGE AND JMFC, SAKALESHPUR. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned Senior Counsel for the appellant. 2. This appeal is filed against the divergent finding. The Trial Court granted the relief of permanent injunction against the defendants, since the plaintiff claims that the suit schedule property to the extent of 13 guntas of land was granted on 28.08.2003 and the plaintiff produced the documents of Exs.P.1 to 7 to the evidence the said fact. On the other hand, the defendants only produced the photographs before the Trial Court. The Commissioner was also appointed and the Commissioner gave the report and in terms of the Commissioner’s report, the plaintiff is in occupation and possession of the property to the extent of 11½ guntas and the defendants are in possession of 2½ guntas. The plaintiff has not filed any objections to the said - 3 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 report. However, the Commissioner was examined before the Trial Court. The Commissioner in the cross-examination submits that he went to the spot along with the documents and verified the documents and those documents are not produced along with the report. He admits that in terms of the RTC, the plaintiff’s name is shown to the extent of 13 guntas. He says when the spot inspection was conducted, they used to enquire with the villagers and record the statement of the villagers and report will be given as per the possession. He categorically admits that, at the spot they have not recorded the statement of the villagers regarding the possession and also admitted in the cross-examination that in terms of the villagers statement, in between the land of the plaintiff and the defendants, the fencing was removed. But the evidence of the Commissioner, who has been examined as C.W.1 is very clear that in terms of the RTC, the plaintiff is in possession of 13 guntas. But stated that on making an enquiry with the villagers and recording of statement, they used to give the report as per the possession. He categorically admitted that he did not record the statement of any of the witnesses, who are all in possession of the property. The Trial Court taking into note of the said fact into consideration, - 4 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 granted the relief of permanent injunction. However, the First Appellate Court having re-assessed the material available on record, allowed the appeal and set aside the judgment of the Trial Court in entirety and hence the present second appeal is filed before this Court. 3. This Court while admitting the second appeal, framed the following substantial questions of law: (i) Whether the lower Appellate Court has committed an error in ignoring Exs.P.1 to 7 and also committed an error in relying upon the Commissioner’s report that the plaintiff failed to prove his possession and enjoyment over the entire suit schedule property? (ii) Whether the lower Appellate Court committed an error in coming to the conclusion that the respondents are in possession of 3 guntas of land prior to filing the present suit and not entitled for the relief of bare injunction without having possession in entirety? Substantial question of law Nos.(i) and (ii): 4. The learned counsel for the appellant would vehemently contend that grant was made in favour of the plaintiff on 28.08.2003 and the document is also placed - 5 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 before the Court as Ex.P.2 to show that grant was made to the extent of 13 guntas and mutation is marked as Ex.P.1. Apart from that, the document of boundaries issued by the Village Panchayath is marked as Ex.P.3, Exs.P.4 and 5 are the tax paid receipts, Ex.P.6 is the sketch and Ex.P.7 is the RTC extract. The learned counsel also brought to the notice of this Court the photographs at Exs.D.1 to 5, which have been marked by the defendants and also CD as Ex.D.6. 5. The learned counsel for the appellant would vehemently contend that the First Appellate Court committed an error in dismissing the suit and fails to consider the documents of Exs.P.1 to 7 and ignored the same and erroneously relied upon the Commissioner’s report, that the plaintiff failed to prove his possession and enjoyment over the entire suit schedule property. The learned counsel also vehemently contend that the Appellate Court committed an error in coming to the conclusion that the respondents are in possession of 3 guntas of land prior to filing of the present suit and not entitled for the relief of bare injunction without having possession in entirety. The very approach of the First Appellate Court is erroneous. The learned counsel also - 6 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 brought to the notice of this Court that there is a clear admission on the part of defendant No.1 in paragraph No.8 of the written statement, wherein he has categorically stated that in Sy.No.210, the area of the plaintiff is to the extent of 13 guntas and the same is separated. When such admission is given on the part of the defendant that the plaintiff is in possession of the property to the extent of 13 guntas, which is separate, the Appellate Court ought not to have reversed the finding of the Trial Court. 6. It is also important to note that in the cross- examination of D.W.1, when a question was put to him that in the written statement, he categorically admitted that he has mentioned that the plaintiff is in possession separately to the extent of 13 guntas, the same substantiate the contention of the learned counsel for the appellant that there is a clear admission in the written statement itself that the plaintiff is in possession to the extent of 13 guntas separately. Though D.W.1 claims that he is in possession to the extent of 3 guntas of land, to prove the same, except the photographs, he has not produced any documentary evidence. In the cross-examination, he categorically admits that in the written - 7 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 statement he did not mention anything that the plaintiff is making an attempt to knock off his property and also he categorically admits that he did not specifically mention in the written statement that in the land of the plaintiff to the extent of 13 guntas, they have not made any encroachment. These admissions are very clear that in the written statement as well as in the cross-examination, he reiterated that the plaintiff is in possession of the property to the extent of 13 guntas of land separately. But the Appellate Court committed an error in considering the Commissioner’s report. 7. On perusal of the Commissioner’s report and also the evidence, though objection is not filed to the Commissioner’s Report, wherein the Commissioner’s report discloses that only 11½ guntas of land was identified by the Commissioner and to the extent of 2½ guntas, the Commissioner gave the report that 2½ guntas is in the possession of the defendants. When the Commissioner was examined as C.W.1 before the Court, he categorically admits that in the RTC, the name of the plaintiff is shown to the extent of 13 guntas. With regard to report is concerned, he categorically says that, on enquiring the villagers and also - 8 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 recording the statement of villagers, he used to give report as per the occupation of the property. He admits that at the spot he did not record the statement of any of the witnesses that who are all in possession of the property. This admission on the part of the Commissioner takes away that his report is not on the possession and also not based on the statement of any of the persons. But again he claims that, in the report he had mentioned that in between the land of the plaintiff and the defendants, he had mentioned that the plaintiff removed the fencing. But no such statement was recorded at the spot as admitted by him and hence that report is contrary to his own statement and hence the Appellate Court ought not to have relied upon the Commissioner’s report and the report is not in consonance with any documentary evidence. The admission on the part of the Commissioner is contrary to his own report and hence, the report of the Commissioner cannot be relied upon. 8. The Trial Court while granting the relief of permanent injunction to see that as on the date of filing of the suit, who is in possession of the property. All the documents, particularly Exs.P.1 to 7 i.e., grant certificate, mutation, RTC - 9 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 extract and tax paid receipts, evidence the fact that the plaintiff is in possession to the extent of 13 guntas of land and the same was granted. But the Appellate Court committed an error in relying upon the commissioner’s report that the plaintiff failed to prove his possession. The Commissioner’s report is not based on any material and the Commissioner has not recorded the statement of any of the witnesses even though the Commissioner admitted that report will be given based on the statement of witnesses, who gave the statement with regard to the possession is concerned. When no such statement was recorded at the spot with regard to the enjoyment of the property is concerned, the Appellate Court ought not to have relied upon the Commissioner’s Report. The Appellate Court also committed an error in dismissing the entire suit in coming to the conclusion that the plaintiff failed to prove his possession in respect of the entire property and particularly, possession of 3 guntas of land that prior to filing the present suit, the respondents are in possession of the property which is also not based on any documentary proof and except the photographs, the defendants have not placed any document. - 10 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 9. When the suit is filed for the relief of bare injunction, if the Court is not convinced, ought not to have dismissed the suit in entirety and the very report itself is not based on any scientific report and no statement of witnesses was recorded with regard to the enjoyment of the property and the same is admitted by the Commissioner. When such admission is given on the part of the Commissioner, the Appellate Court ought not to have relied upon the same. The very approach of the Appellate Court in dismissing the suit is erroneous and committed an error in relying upon the Commissioner's report and the same is not acceptable in view of his own admission. When documentary proofs are produced before the Court in terms of Exs.P.1 to 7, that land was granted in favour of the plaintiff in the year 2003 itself vide Ex.P.2 and the documents clearly disclose that the plaintiff is in possession of the suit schedule property in entirety to the extent of 13 guntas, the Appellate Court committed an error in reversing the judgment of the Trial Court. The Trial Court while granting the relief has taken note of the admission on the part of D.W.1 in paragraph No.14. The Trial Court in paragraph No.15 taken note of the admission of D.W.1 in paragraph No.8 of the written - 11 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 statement and the same was elicited from the mouth of D.W.1 during the course cross-examination. D.W.1 has not disputed about the documents standing in the name of the plaintiff and categorically admits that the suit is filed to the extent of 13 guntas and in order to prove that the property belongs to him, he has not produced any document. The Trial Court also taken note of the fact that the Commissioner during the course of cross-examination deposed that he has given the report based on the statement of villagers, and in the cross- examination, he categorically admits that he did not record the statement of any of the witnesses. When such materials were considered by the Trial Court, the Appellate Court ought not to have reversed the finding of the Trial Court and the Trial Court has passed a well reasoned order and even the answers elicited from the mouth of the witnesses has been extracted in the judgment of the Trial Court. Hence, the Appellate Court committed an error in reversing the said judgment and it requires interference of this Court. Accordingly, I answer the substantial questions of law in the ‘affirmative’. - 12 - HC-KAR NC: 2025:KHC:28660 RSA No. 45 of 2022 10. In view of the discussions made above, I pass the following: ORDER (i) The second appeal is allowed. (ii) The judgment and decree of the First Appellate Court dated 31.07.2021 passed in R.A.No.2/2020 is hereby set aside. Consequently, the judgment and decree of the Trial Court dated 19.12.2019 passed in O.S.No.145/2014 is restored in respect of the suit schedule property. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 87