- 1 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 101124 OF 2022 (DEC/INJ-) BETWEEN: 1. SHIDDANAGOUDA S/O. NINGANGOUDAPATIL, AGE. 76 YEARS, OCC. AGRICULTURE, R/O WARD NO.11, OPP. BUS STAND BILAGI, TQ. BILAGI, DIST BAGALKOT. 1.a LAKSHMI W/O. LATE SHIDANAGOUDA, AGED ABOUT 88 YEARS 1.b PRABHURAJ PATIL S/O. LATE SHIDANAGOUODA, AGED 50 YEARS 1.3. ANUPAMA W/O. SOMASHEKAR RUDRAKSHI, AGED ABOUT 46 YEARS 1.4. SANDEEP S/O LATE SHIDANAGOUDA PATIL AGED ABOUT 41 YEARS ALL ARE R/O WARD NO.11, OPP. BUS STAND BILAGI, TQ. BILAGI, DIST. BAGALKOT. …APPELLANTS (BY SRI. S.H.MITTALKOD, ADVOCATE) AND: GURAPPA S/O SIDDAPPAUKKALI SINCE DEAD, HE HAS NO LEGAL HEIRS. SANGAPPA S/O SIDDAPPAKALYANI SINCE DEAD BY HIS LR’S MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.24 13:12:20 +0530 - 2 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 1. SMT. DANAVVA W/O SANGAPPAKALYANI, AGE: 83 YEARS, OCC: HOUSEHOLD WORK, R/O: JADAR ONI BILAGI, TQ: BILAGI, DIST: BAGALKOT- 587101. 2. SHRISAIL S/O. SANGAPPA KALYANI, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: JADAR ONI BILAGI, TQ: BILAGI. 587116. 3. SMT. BORAVVA W/O. IRAPPA KARABANTANAL, AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: VIJAYAPUR, TQ & DIST: VIJAYAPUR – 586101. 4. SIDAPPA S/O. SANGAPPAKALYANI, AGE 58 YEARS, OCC: AGRICULTURE, R/O: JADAR ONI BILAGI, TQ: BILAGI, DIST: BAGALKOT – 587101. 5. PRAKASH S/O. SANGAPPA KALYANI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: JADAR ONI BILAGI, TQ: BILAGI, DIST: BAGALKOT – 587101. 6. RAVIKUMAR S/O. SANGAPPA KALYANI, AGE: 53 YEARS, OCC: AGRICULTURE, R/O: JADAR ONI BILAGI, TQ: BILAGI, DIST: BAGALKOT – 587101. 7. SMT. BAGIRATHI W/O. AMARAPPA JADI, AGE: 51 YEARS, - 3 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 OCC: HOUSEHOLD WORK, R/O: GANGAVATHI, DIST: RAICHUR – 584111. 8. MAHADEVAPPA S/O. SIDDALINGAPPA DESHATTI, AGE: 73 YEARS, OCC: PENSIONER, R/O: JADAR ONI BILAGI, TQ: BILAGI, DIST: BAGALKOTE – 587101. 9. SIDRAMAYYA S/O. CHANNAYYA,PANCHAKATTI, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: JADAR ONI BILAGI,TQ: BILAGI DIST: BAGALKOTE – 587101. 10. SIDDAYYA S/O. VEERAYYA GOTHE, AGE: 88 YEARS, OCC: AGRICULTURE, R/O: SHIDDESHWAR NAGAR, BILAGI. TQ: BILAGI, DIST: BAGALKOTE- 587101. 11. MALLAPPA S/O. YALLAPPA ANNIGERI, AGE: 73 YEARS, OCC: AGRICULTURE, R/O: SHIDDESHWAR NAGAR, BILAGI. TQ: BILAGI, DIST: BAGALKOTE – 587101. BOMANNA RAMAPPA ANNIGERI SINCE DECEASED BY HIS LR’S 12. SMT. GANGAVVA W/O. BOMMANNAANNIGERI, AGE: 73 YEARS, OCC: HOUSEHOLD WORK, R/O: JADAR ONI BILAGI, TQ: BILAGI, DIST: BAGALKOTE – 587101. - 4 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 13. RAMAPPA S/O. BOMMANNAANNIGERI, AGE: 53 YEARS, OCC: AGRICULTURE, R/O: JADAR ONI BILAGI, TQ: BILAGI, DIST: BAGALKOTE – 587101. 14. SIDRAMAPPA S/O BOMMANNA ANNIGERI, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: JADAR ONI BILAGI, TQ:BILAGI - 587116. 15. SMT. RENAVVA D/O. BOMMANNA ANNIGERI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: JADAR ONI, BILAGI, TQ: BILAGI - 587116. 16. SMT. BAYAVVA D/O. BOMMANNA, ANNIGERI, AGE:45 YEARS, R/O: JADAR ONI BILAGI, TQ: BILAGI - 587116. 17. JAMAPPANNA S/O. KALLOLEPPA KATTIMANI, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: NEAR SHIDDESHWAR HIGH SCHOOL, BILAGI - 587116. …….RESPONDENTS ------- THIS RSA IS FILED UNDER SECTION 100 R/W 41 RULE 1 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT DATED 17.01.2022 PASSED BY THE PRL. DISTRICT JUDGE, BAGALKOT IN R.A. NO.159/2009 AND THE JUDGMENT AND DECREE DATED 10.09.2009 PASSED BY THE SR. CIVIL JUDGE, BILAGI IN O.S.NO.99/2005, IN THE INTEREST OF JUSTICE AND EQUITY AND DECREE THE SUIT OF THE APPELLANT AS PRAYED, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 5 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the plaintiff assailing the judgment and decree dated 17.01.2022 in RA No.159/2009 on the file of Principal District and Sessions Judge, Bagalkote, (for short, hereinafter referred to as ‘First Appellate Court’) dismissing the appeal by confirming the judgment and decree dated 10.09.2009 in OS No.99/2005 on the file of Civil Judge (Sr.Dn.), Bilagi (for short, hereinafter referred to as ‘Trial Court’) dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The plaint averments are that; the plaintiff is the owner in possession of the suit property bearing Town Panchayat No.1505 of Bilagi town as the said property is belonging to the ancestors of the plaintiff. It is further averred in the plaint that the defendants being the residents of Jadar Oni and Katikar Oni, which is far away from the suit schedule properties, however, the defendant No.1 is interfering with the suit schedule properties, denying the title of the plaintiff and - 6 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 therefore, the plaintiff has filed OS No.99/2005 before the Trial Court seeking relief of declaration with consequential relief of injunction against the defendants. 4. On service of notice, the defendants entered appearance and filed detailed written statement denying the title of the plaintiff and further took up a specific contention that the plaintiff is not the owner of the open space as mentioned in the suit schedule properties. It is the contention of the defendant Nos.2 to 8 in their written statement that the defendant Nos.2 to 8 are in possession of their respective crops and therefore, no mandatory injunction would be granted against the defendants and accordingly, sought for dismissal of the petition. 5. Based on the pleadings on record, the Trial Court formulated issues and additional issues for its consideration. In order to establish their case, plaintiff has examined three witnesses as PW1 to PW3 and marked 9 documents as Ex.P1 to P9. On the other hand, the defendants have examined one witness as DW 1 and marked 42 documents as Ex.D.1 to D42 and as such the Trial Court after considering the material on record by its judgment and decree dated 10.09.2009 dismissed - 7 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 the suit. Feeling aggrieved by the same, the plaintiff has preferred RA No.159/2009, and the said appeal was resisted by the defendants. 6. The First Appellate Court after considering the material on record by its judgment and decree dated 17.01.2022 dismissed the appeal, consequently, confirming the judgment and decree passed in OS No.99/2005. Hence, this regular second appeal is filed. 7. Heard Sri S. H. Mittalkod, learned counsel appearing for the appellants. 8. Sri. S. H. Mittalkod, learned counsel appearing for the appellants contended that both the Courts below have not considered the long standing possession of the plaintiff in the suit schedule properties and it is the case of the plaintiff that the plaintiff had acquired the property from their ancestors and the said aspect was ignored by both the Courts below despite the plaintiff has produced the Tax paid receipt and assessment extract and accordingly, sought for interference of this Court. It is also submitted by the learned counsel appearing for the appellants that the respondents-defendants have not produced any record to claim the suit schedule properties and in such an - 8 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 event, both the Courts below ought to have considered the records in the right perspective and as such sought for interference of this Court. 9. In the light of submission made by learned counsel appearing for the appellants, I have carefully given my anxious consideration to the finding recorded by both the Courts below. It is the case of the plaintiff that the plaintiff is the owner and possession of the open space bearing Town Panchayat No.1505 of Bilagi town. The Trial Court after considering the factual aspect on record, wherein the PW1 has deposed as follows: ! "#$ % & $ ' () 10. Taking into consideration the fact that no document has been produced by the plaintiff under which document the plaintiff acquired the suit schedule property and also taking into account as per the deposition of DW1 who deposed at paragraph No.5 in the examination-in-chief that the properties described by the plaintiff by boundaries are the properties of defendants and the defendants are in actual possession of the properties, and in view of the said aspect of the matter though the learned counsel appearing for the appellant places reliance - 9 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 on the judgment of Hon’ble Supreme Court in the case of Shivshankara and Another Vs. H.P. Vedavyasa Char1 to substantiate that the long standing possession of the party is to be considered in the declaratory suit, however, the said judgment cannot be made applicable to the facts on record in the present case since, the defendants have claiming the very same property in the written statement as well as in the evidence. In that view of the matter, taking into consideration the declaration of law made by the Hon’ble Supreme Court in the case of Union of India and Others Vs. Vasavi Cooperative Housing Society Limited2, and in the case of Hullappa Vs. The State of Karnataka and Others3, I am not inclined to interfere with the well reasoned judgment of both the Courts below. It is well established principle of law as stated by the Hon’ble Supreme Court in the case of Punjab Urban Planning and Development Authority Vs. M/s. Shiv Saraswati Iron and Steel Re-Rolling Mills4 and in the case of Ratnagiri Nagar Parishad Vs. Gangaram Narayan 1 (2023) 13 SCC 1 2 (2014) 2 SCC 269 3 ILR 2012 KAR 4958 4 AIR 1998 SC 2352 - 10 - NC: 2025:KHC-D:626 RSA No. 101124 of 2022 Ambekar5, that the weakness of the defendants cannot be considered in a declaratory suit in the absence of cogent material produced by the plaintiff to substantiate his right over the property in possession. (See (2019) 3 SCC 19). Therefore, I am of the view that the judgments referred to by the learned counsel appearing for the appellants cannot be considered to the factual aspect of the present matter and both the Courts below concurrently against the plaintiff on the ground of want of title documents and therefore, the appellants have not made out a case for interference under Section 100 of CPC to formulate substantial question of law. 11. In the result, the appeal is dismissed. Sd/- (E.S.INDIRESH) JUDGE SMM CT:ANB List No.: 1 Sl No.: 21 5 (2020) 7 SCC 275