1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF SEPTEMBER 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO R.S.A. NO.1625 OF 2018 (DEC/INJ) BETWEEN: SRI. ZIYAULLA, AGED ABOUT 59 YEARS, S/O LATE ABDUL GAFFAR KHAN, R/AT. DR.ZAKIR HUSSAIN MOHALLA, SRINIVASAPURA TOWN, KOLAR DISTRICT. ...APPELLANT (BY SRI. G. PAPI REDDY, SENIOR COUNSEL FOR SRI. VINOD REDDY V., ADVOCATE) AND: ADEEBA BANO, AGED ABOUT 55 YEARS, W/O BASHA, TEACHER, GOVT. URDU GIRLS’ HIGHER PRIMARY SCHOOL, SRINIVASAPUR TOWN, KOLAR DISTRICT. …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.02.2018 PASSED IN R.A.NO.67/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.03.2017 PASSED IN OS.NO.95/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, SRINIVASAPUR. 2 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV JUDGMENT The present Regular Second Appeal is filed assailing the judgment and decree dated 19.02.2018, in R.A.No.67/2017 passed by the Court of the Principal Senior Civil Judge, Kolar (hereinafter referred to as ‘the first appellate Court’) confirming the Judgement and decree dated 15.03.2017, in O.S.95/2008, passed by the Court of Principal Civil Judge & JMFC., at Srinivasapura (hereinafter referred to as ‘the trial Court’). 2. The appellant herein is the plaintiff/appellant before the Courts below and the respondent herein is the defendant/respondent before the Courts below. 3. For convenience of reference, the parties herein are referred to as per the rankings before the trial Court. 4. The plaintiff filed O.S.No.95/2008 against the defendant on the file of Court of Principal Civil Judge & JMFC., at Srinivasapura for the relief of declaration, mandatory injunction and consequential relief of permanent injunction restraining the 3 defendant and his men from interfering with plaintiff’s peaceful possession and enjoyment of the suit schedule property. 5. The case of the plaintiff is that he is the absolute owner in possession and enjoyment of the suit schedule property, having purchased Site No.30 under a registered sale deed dated 01.09.2003 from its previous owner, T.N. Sampath Lakshmi, and another site bearing No.28 from its previous owner, Md. Munawar S/o. Ghouse Sab, both forming part of Sy.No.174 measuring 2 acres 11 guntas situated at Srinivaspura Taluk. The said land originally belonged to Jama Masjid, Srinivaspura Town, and upon application, was converted for non-agricultural purpose on 12.03.1990 in ALN.CR.2/89-90, and thereafter the Town Municipality approved the layout plan and changed the revenue records in the names of the vendors. 6. The plaintiff claims that from the date of purchase he has been in continuous possession and enjoyment of the said vacant sites without obstruction, his ownership and possession being duly recognized in the revenue records and he has been regularly paying kandayam and other dues to the Government. According to the plaintiff, there exists a 20 feet East-West road between Sites No.28 and 30, and the defendant, having no right, 4 title or interest in the suit schedule property, has illegally attempted to interfere and, despite pendency of the suit, has willfully encroached over the suit schedule property to the extent of 12 x 27½ feet on the Northern side of Site No.30, leaving 10 feet space from her Site No.31 and laying foundation in violation of the orders of trial Court. Hence, the plaintiff has sought for a decree of declaration, permanent injunction and consequential relief of mandatory injunction against the defendant. 7. Per contra, the defendant filed her written statement, wherein denying material averments made in the plaint and contended that she is the lawful owner in possession and enjoyment of the suit schedule property, having purchased Site No.31, Khatha No.4212, Assessment No.4193, measuring East- West 27½ feet and North-South 40 feet, under a registered sale deed dated 31.03.2005 from its earlier owner, K.R. Kedarnath S/o. K.V. Ramanujam Shetty, for valuable consideration. The said property is bounded on the East by Municipal sites, West by Road, North by Site No.34 and South by Site No.30 i.e., the suit property. 8. The defendant asserts that ever since purchase, she has been in continuous and peaceful possession, her name having 5 been duly entered in the revenue and municipal records. She further contends that the plaintiff’s allegation of a 20 feet road towards the Northern side of the suit property is false, as in reality, the land in question is Site No.34, and hence, the allegation of encroachment is unfounded. It is the case of the defendant that she has only laid foundation and stored building materials in her own site for the purpose of construction of a dwelling house, and at that stage, the plaintiff, with an intention to harass and obstruct her lawful enjoyment, instituted the present O.S.No.95/2008. The defendant, who is employed as a Teacher in the Education Department, thus prays for dismissal of the suit with costs. 9. Based on the pleadings, the trial Court has framed following issues for consideration:- (i) Whether the plaintiff proves that he is in possession of the suit Schedule property as on the date of suit? (ii) Whether the plaintiff proves the alleged interference by the defendant? (iii) Whether the plaintiff proves that after filing of the suit defendant has encroached 12 X 27½ feet in the northern portion of the suit schedule property as contended in para-3 of the plaint? 6 (iv) Whether the plaintiff proves that he is entitled for mandatory injunction as prayed for? (v) Whether the plaintiff is entitled for the relief as claimed in the plaint? (vi) What order or decree? 10. In order to substantiate his claim, the plaintiff examined himself as PW-1 and got marked the documents as Exs.P1 to Ex. P15. On the other hand, the defendant to defend her defense, she got herself examined as DW1 and got documents marked as per Ex.D1 to D7. 11. The trial Court based on the pleadings, oral and documentary evidence, by rejecting Ex.C2 – Court Commissioner’s report, held that the plaintiff failed to prove the existence of 20 feet road in between the site No.28 and 30 and the plaintiff also has not proved that the defendant has encroached 12 X 27½ feet in Site No.30. 12. Assailing the said Judgement and decree of the trial Court, the plaintiff has preferred an appeal in R.A.No.67/2017. The first appellate Court has framed following issues for consideration:- (i) Whether the appellant proved to the satisfaction of the court that the judgment impugned 7 herein has become capricious, perverse, arbitrary and hence interference in the same is called for? (ii) What order? 13. The first appellate Court after considering the facts and circumstances of the held as under:- 64. Having alleged that the defendant has encroached to an extent of 12 X 272 feet the plaintiff has not established the same with proper pleadings and proof and no proper relief of declaration is also sought by the plaintiff pertaining to the alleged 20 feet road which according to the plaintiff exist in between site No. 28 and 30. Therefore, this court finds no reasons to interfere with the judgement and decree passed by the trial court and for all the reasons stated above, point No. 1 is answered in the Negative. 14. The following substantial questions of law were raised by the learned counsel for the appellant for consideration, at the stage of admission: (a) Whether the Courts below were justified in not considering the admissions made in written statement, undisputed documents and evidence of C.W.-1, and material evidence supporting the case of the Plaintiff while giving their findings reaching conclusions in the impugned Judgments and Decrees? (b) Whether the findings of the Courts below on issues relating to ownership and trespass over the portion of suit schedule property and putting up 8 unauthorized construction by defendants are contrary to evidence on record ? (c) Whether the inferences drawn and conclusions arrived at by the Courts below while passing the impugned judgment and Decree result in miscarriage of justice ? (d) Whether the Courts below were justified in considering irrelevant evidence on record by ignoring the undisputed facts and evidence directly touching evidence supporting the case of plaintiff ? 15. The learned counsel appearing for the appellant would contend that the Courts below have gravely erred in dismissing the suit despite the defendant having admitted the title and possession of the plaintiff over the suit schedule property. The relief sought was one for declaration of title and mandatory injunction for recovery of the encroached portion, and the documentary evidence produced by the plaintiff, namely the approved layout plan (Ex.P-17) and the sale deed of Site No.28 (Ex.P-15), clearly establish the existence of a 20 feet road between Sites No.30 and 28. The said fact also finds mention in the revenue records. The vital issue as to whether the road measures 10 feet or 20 feet was essential for deciding the encroachment of 12 x 27½ feet by the defendant, but the Courts below have failed to properly adjudicate the same. 9 16. It is further contended that the report of the Court Commissioner, though noting that the approved layout plan shows a 20 feet road, mentions the existing road as being only 10 feet. In cross-examination, the Commissioner categorically admitted that while constructing the hostel, 10 feet had been encroached towards the southern side, and other site holders had encroached upon the remaining 10 feet. This admission, coupled with Exs.P-15 and P-17, proves the encroachment into the plaintiff’s property. 17. The appellant further submits that the approved layout plan (Ex.P-16) and the testimony of CW-2 establish the identity of the suit schedule property, the admitted boundaries, and the encroachment by the defendant in putting up unauthorized foundation therein. The undisputed documents produced by the plaintiff, as well as the clear admissions elicited from the Commissioner, leave no doubt as to the encroachment. The Courts below have nevertheless misread the evidence, failed to draw proper inferences, and wrongly cast the burden on the plaintiff for not seeking a declaration as to the measurement of the road. Hence, the present Regular Second Appeal. 10 18. Heard learned senior counsel appearing for the appellant and perused the material on record. 19. On hearing the submissions of the counsel for the appellant, it appears that at the outset, it has to be noticed that this being a second appeal, it is only substantial question of law which gives raise for this Court to clutch the jurisdiction and answer the said question of law as otherwise, this Court would lack jurisdiction to entertain second appeal. 20. It appears that in the light of the above concurrent findings, no substantial question arose before this Court and there was no substantial ground for re-appreciation of evidence on record. There are no merits to interfere in the well considered Judgment passed by the trial Court, affirmed by the appellate Court. 21. For the aforesaid reasons, the following order is passed: i) Appeal is hereby dismissed at the stage of admission, by rejecting the contentions raised in appeal memorandum and there being no substantial question of law involved. 11 ii) Judgment and Decree dated dated 19.02.2018, in R.A.No.67/2017 passed by the Court of the Principal Senior Civil Judge, Kolar, is dismissed and the Judgment and Decree dated 15.03.2017, in O.S.95/2008, passed by the Court of Principal Civil Judge and JMFC., at Srinivasapura, is hereby affirmed. Pending I.As, if any, shall be consigned to file. Sd/- (DR. K.MANMADHA RAO) JUDGE BNV Ct-UR