- 1 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO.140 OF 2020 (DEC/INJ) BETWEEN: SRI. E. MARULUSIDDAPPA S/O ESWARAPA AGED ABOUT 63 YEARS RETIRE PDO, R/O HURULAHALLI VILLAGE KASABA HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 515. ALSO RESIDENT OF PDO BALLALSAMUDRA GRAMA PANCHAYATH, SRIRAMPURA HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT. …APPELLANT (BY SRI. SANTHOSH KUMAR M.B, ADVOCATE FOR SRI. SHIVA KUMAR G.M, ADVOCATE) AND: SRI. DHANAJAYACHAR S/O SHANKARACHAR AGED ABOUT 66 YEARS, CARPENTER R/O HURULIHALLI VILLAGE KASABA HOBLI, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 515. …RESPONDENT (BY SRI. S.N. RAMA PRASAD, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 07.12.2019 PASSED IN RA NO 197/2016 (OLD RA NO.33/2015) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSADURGA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.08.2015 PASSED IN OS NO.38/2011 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, HOSADURGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard learned counsel for the appellant Sri Santhosh Kumar M B for Sri Shiva Kumar G M and learned counsel for the respondent Sri S N Rama Prasad. 2. Unsuccessful plaintiff is the appellant. Challenging the judgment passed in OS No.38/2011, whereby the suit of the plaintiff came to be dismissed, which was confirmed in R.A. No.197/2016. - 3 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 3. Present appeal is filed on the following substantial questions of law: (1) Are the trial court and the first appellate court are right in dismissing the suit of the plaintiff on the basis of weakness of the plaintiff case? (2) Whether the trial court and the first appellate court is right in passing the impugned judgments on the ground that although the plaintiff has proved that suit schedule property which is portion of property which has been allotted to him in the partition of his family is belongs to him and he seeks declaration based on said title ? (3) Are the Trial Court and First Appellate court are right in not considering the title of the plaintiff as per Record of Rights RTC Pahanis produced by the plaintiff? (4) Are the judgments of the Trial Court and First Appellate Court are right in not considering the specific plea put forward by the plaintiff or the evidence given by the plaintiff showing his legal right and possession as on the date of filing the suit? - 4 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 4. Facts in brief which are utmost necessary for disposal of the present appeal are as under: 4.1. Plaintiff filed a suit for declaration and injunction in respect of property bearing Sy.No.41/3p2 consisting of coconut garden at Hurulihally village, Kasaba hobli, Hosadurga taluk, Chitradurga District, measuring 1 acre 21 guntas, out of which country-tiled roof house measuring East-West 45 feet, North-South 16 feet, marked as ABCD in the rough sketch, bounded on - East, West and North by remaining portion of land in Sy.No.41/3p1 and South by Hurulihally road, hereinafter referred to as suit property. 4.2. According to the plaintiff, he being the owner of the property, defendant, without any right, title or interest encroached upon the suit property and constructed a house measuring 45 feet east-west and 16 feet north- south. It is a country-tiled roof house. - 5 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 4.3. The suit was resisted by filing a detailed written statement to the effect that the defendant has constructed the suit property in the land that was granted to him by the Huralahalli Gram Panchayat, Bagur Mandal Panchayat, and he has not encroached any land of the plaintiff. 5. On completing the pleadings, learned trial Judge raised necessary issues and parties placed their respective oral and documentary evidence on record. 6. Learned trial Judge having recorded the evidence of the parties was unable to form a definite opinion about the case of the parties. 7. Therefore, a Taluka surveyor was appointed as the Court Commissioner to visit the spot and to carry out spot inspection and file a report. 8. Taluka surveyor thus visited the suit property with prior notice to the parties and carried out spot inspection and filed the sketch and a report. - 6 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 9. As per the report of the Taluka Surveyor, there existed a one feet space in between the plaintiff's property and the defendant's house and plaintiff's property was secured by barbed wire fencing after carrying out the 'ºÀzÀÄÝ §¸ÀÄÛ' about the extent of his property. 10. Admittedly, the Court Commissioner was not cross examined by the plaintiff, but cross examined in detail by the defendant, wherein he has admitted that he has not shown the measurement of the defendant's property or the plaintiff's property. 11. Learned Judge on the basis of the material evidence placed on record, noted that there existed a one feet space between the property of the plaintiff and the existing house of the defendant (though defendant failed to establish that he has constructed the property in the granted land) and dismissed the suit of the plaintiff. 12. Being aggrieved by the same, plaintiff filed an appeal before the District Court in R.A. No.197/2016. - 7 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 13. Learned Judge in the first appellate Court, on re-appreciation of the factual aspects and the material evidence placed on record dismissed the appeal of the plaintiff by recording a categorical finding that plaintiff failed to establish before the Court that the defendant encroached the suit property and constructed the house. 14. Being further aggrieved by the same, appellant is before this Court. 15. Learned counsel for the appellant reiterated the grounds urged in the appeal memorandum in the light of the substantial questions of law referred to above, contended that both the courts have not properly taken into consideration the material evidence on record and wrongly dismissed the suit of plaintiff and sought for admitting the appeal for further consideration. 16. Per contra, learned counsel for the respondent supports the impugned judgement and banks upon the report filed by CW.1, though it is detrimental to his - 8 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 interest to the extent of the fact that there existed one feet passage between the property of the plaintiff and the house of the defendant and sought for dismissal of the appeal. 17. Having heard the arguments of both sides this Court perused the material on record meticulously. 18. On such perusal of record meticulously, it is crystal clear that the plaintiff claimed that there was an encroachment into the suit property, whereas the land of the plaintiff had the Sy.No.41/3p2. 19. According to the plaintiff, the defendant has encroached upon the said property and constructed a country tiled roof house. Defendant maintained that he has been granted the house site by the Bagur Mandal Panchayat vide EXs.D9 and D10. However, the proceedings of the Bagur Mandal Panchayat was not furnished to the defendant as per EX.D.9. - 9 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 20. In the said set of circumstances, when there is two different titles in respect of the property of the plaintiff and defendant, and the material evidence placed on record both oral and documentary was not decisive in appreciating the case of the parties, the learned trial Judge appointed Taluka Surveyor as the Court Commissioner. Taluka Surveyor visited the place of suit property and based on the materials furnished by the parties and also the sketch that was obtained by him from the taluk office measured the property of the plaintiff as well as the defendant. 21. According to Court Commissioner, plaintiff got fenced his land on all the four sides by barbed wire fencing after getting the 'ºÀzÀÄÝ §¸ÀÄÛ' he has also noted that there exists a one feet space in between the property of the plaintiff and the defendant. However, the Commissioner has also noted that defendant's property is in ºÀ¢Ý£À ºÀ¼Àî (meaning thereby the waste land in the boundary of the - 10 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 village). It is also his case that portion of the property of defendant is situated in Sy. No.41/4. 22. For the reasons best known to the plaintiff, he did not cross examine the Commissioner; whereas defendant has cross examined on the portion of the report where it was detrimental to his interest and elicited few answers. 23. In such cross examination, few admissions are elicited. Important admission is that the existence of one feet passage between the property of the plaintiff and the defendant. It is also admitted by the Commissioner that the plaintiff has put a gate and the said gate is using for ingress and egress into his property. 24. In the teeth of such a categorical finding recorded by the Commissioner after visiting the spot and conducting the spot inspection, non-examination of the Court Commissioner by the plaintiff, the trial Judge formed - 11 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 a definite opinion that there was no encroachment of the property by the defendant in the land of the plaintiff. 25. However, if the portion of the house of the defendant is on the road, it is for the panchayat to take necessary action or anybody else who has been obstructed by construction of the house of the defendant in the road. No such action was taken by the panchayat or any other villagers. 26. Since the definite case of the plaintiff was to the effect that the defendant has encroached upon his property and constructed a house, and finding recorded by the Commissioner is against the case of the plaintiff, dismissal of the suit of the plaintiff by the trial Judge confirmed by the first appellate Court is based on sound and logical reasons. 27. Accordingly, this Court is of the considered opinion that the substantial questions of law raised in the - 12 - HC-KAR NC: 2025:KHC:30412 RSA No. 140 of 2020 appeal memorandum, referred to supra, does not merit for further consideration. 28. In view of the foregoing discussion, the following - ORDER The appeal is merit less and is hereby dismissed. Sd/- (V SRISHANANDA) JUDGE YKL List No.: 1 Sl No.: 26 CT: BHK