- 1 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100880 OF 2016 (-) BETWEEN: SHRI. SIDALAPPA S/O. BALAPPA KAMBLE @ KOLKAR, AGE: 72 YEARS, OCC: AGRICULTURIST & PENSIONER, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. …APPELLANT (BY SRI. MANJUNATH KARIGANNAVAR, ADVOCATE) AND: 1. SHRI. CHANDRAKANT S/O. LAXMAN KAMBLE, AGE: 72 YEARS, OCC: AGRICULTURIST & PENSIONER, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. 2. SHRI. MAYAPPA S/O. CHANDRAKANT KAMBLE, AGE: 40 YEARS, OCC: PAINTER, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. 3. SHRI.RAMESH S/O. CHANDRAKANT KAMBLE, AGE: 38 YEARS, OCC: PAINTER, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. 4. SHRI. PARASHARAM S/O. LAXMAN KAMBLE, AG.: 70 YEARS, OCC: AGRICULTURIST, R/O: UCHAGAON VILLAGE, TQ & DIST: BELAGAVI. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 5. SHRI. MARUTI S/O. LAXMAN KAMBLE, SINCE DECEASED BY HIS LR’S. 5A) SMT. FAKKAVVA W/O. MARUTI KAMBLE, AGE: MAJOR, OCC: HOUSEHOLD, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. AND ALSO R/O: DHAMANE (YALLUR), TQ: & DIST: BELAGAVI. 5B) KALPANA D/O. MARUTI KAMBLE,, AGE: MAJOR, OCC: HOUSEHOLD, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. AND ALSO R/O: DHAMANE (YALLUR), TQ: & DIST: BELAGAVI. 6. SHRI. KALLAPPA S/O. LAXMAN KAMBLE, AGE: 53 YEARS, OCC: AGRICULTURIST, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. 7. SHRI. DEVAPPA S/O. LAXMAN KAMBLE, AGE: 50 YEARS, OCC: AGRICULTURIST, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. 8. SHRI. BASAVANT S/O. BALAPPA KAMBLE @ KOLKAR, AGE: 83 YEARS, OCC: AGRICULTURIST, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. 9. MARUTI S/O. BALAPPA KAMBLE @ KOLKAR, SINCE DECEASED BY HIS LR’S. 9A) LAXMI W/O. MARUTI KAMBLE @ KOLKAR, SINCE DECEASED AND HER LR’S ARE ALREADY ON RECORD I.E., RESPONDENTS NO.9B TO E. - 3 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 9B) SMT. NAGAVVA W/O. RAMACHANDRA METRI, AGE: 48 YEARS, OCC: HOUSEHOLD & AGRICULTURIST, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. 9C) SHRI. LAXMAN S/O. MARUTI KAMBLE @ KOLKAR, AGE: 43 YEARS, OCC: AGRICULTURIST, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. 9D) SMT. REKHA W/O. YESHWANT SAWANT, AGE: 39 YEARS, OCC: HOUSEHOLD & AGRICULTURIST, R/O: DESUR VILLAGE, TQ: & DIST: BELAGAVI. 9E) SHRI. BALAPPA S/O. MARUTI KAMBLE @ KOLKAR, AGE: 37 YEARS, OCC: AGRICULTURIST, R/O: UCHAGAON VILLAGE, TQ: & DIST: BELAGAVI. …RESPONDENTS (BY SRI. CHETAN MUNNOLI, SMT. SURABHI KULKARNI, & SRI. LOKESH HEGDE, ADVOCATES) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER 41 RULE 1 OF CPC PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGEMENT & DECREE IN R.A.NO.261/2009, DATED:29.06.2016 ON THE FILE OF THE COURT OF I-ADDITIONAL DISTRICT JUDGE, BELAGAVI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:22.10.2005 PASSED IN O.S. NO.221/2001 ON THE FILE OF - 4 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 THE COURT OF III-ADDITIONAL CIVIL JUDGE (JR.DN.) BELAGAVI, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular Second Appeal is filed by the plaintiffs, challenging the judgment and decree dated 29.06.2016 passed in RA No.261/2009 on the file of the I Additional District Judge, Belgaum (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 22.10.2005 passed in OS No. 221/2001 on the file of III Additional Civil Judge (Jr. Dn.), Belgaum (for short, hereinafter referred to as ‘Trial Court’), dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in these appeals shall be referred to in terms of their status and ranking before the trial Court. - 5 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 3. It is the case of the plaintiffs that, the suit schedule property is the ancestral property of the plaintiffs and their names have been mutated in revenue records. It is the case of the plaintiffs that, the schedule property has not been equally partitioned between the plaintiff and the defendants and therefore, the defendants have no right or title to interfere with the suit schedule property. It is also stated that, the defendants have encroached the suit land from eastern side and constructed a house and therefore, the plaintiff has filed OS No.221/2001, seeking relief of permanent injunction against the defendants. 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendants that, the suit itself is not maintainable as the defendants are not the neighbour of the plaintiffs. Accordingly, sought for dismissal of the suit. 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. - 6 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 6. In order to establish their case, plaintiff have examined two witnesses as PW1 and PW2 and got marked 32 document as Exs.P1 to P32. On the other hand, defendants have examined two witnesses DW1 and DW2 and produced 27 documents as Exs.D1 to D27. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 22.10.2005 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs have preferred Regular Appeal in RA No.269/2009 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 29.06.2016 dismissed the appeal consequently, confirmed the judgment and decree passed by the Trial Court in OS No.221/2001. Being aggrieved by the same, the appellants/plaintiffs have preferred this Regular Second Appeal. 8. I have heard Sri. Manjunath Karigannavar, learned counsel for the appellants and Sri. Chetan Munnoli, learned counsel appearing for the respondent - 7 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 9. It is contended by the learned counsel appearing for the appellants submits that, both the Courts below have failed to consider the fact that the suit property is ancestral property of the plaintiffs and also arrived at a wrong conclusion that the respondent Nos.9 and 10(A to D) are in possession of the suit property and the said finding is contrary to records and accordingly, sought for interference of this Court. 10. Per Contra, learned counsel appearing for the respondents submits that, the plaintiffs themselves admitted in a suit that, the land belonging to the defendants is situate far away from the suit land and therefore, the suit for injunction itself is not maintainable and accordingly, sought for dismissal of the appeal. 11. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. It is the case of the plaintiffs that, the suit land is the ancestral property of the plaintiffs and the respondents/defendants have encroached the portion of - 8 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 the suit land and constructed a house in the suit land. In the back drop of these aspects, I have carefully considered the finding recorded by the Trial Court, where, OS No.6/2001 has been filed by the third party against the plaintiffs, seeking relief of injunction which came to be decreed. 12. Having taken note of the finding recorded by the Trial Court at paragraph No.23 of the impugned judgment and decree the plaintiffs have failed to prove that, they are in possession and enjoyment of the suit property and therefore, the Trial Court rightly dismissed the suit of the plaintiffs. The First Appellate Court after re- appreciating the material on record, dismissed the appeal on the sole ground that, the house of the defendants and the suit land are situate far away and approximately around 100 meters and therefore, the finding recorded by both the Courts below requires to be confirmed. 13. Therefore, I do not find material irregularities or perversity in the judgments and decree passed by the Courts below. Since, the plaintiffs/appellants have not - 9 - NC: 2025:KHC-D:4594 RSA No. 100880 of 2016 made out grounds for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed. 14. Accordingly, appeal is dismissed. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 22