- 1 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 390 OF 2023 (INJ) BETWEEN: 1. SRI K T CHANDRASHEKARAPPA S/O LATE THIPPANNA AGED ABOUT 36 YEARS, R/O KANDAGAL VILLAGE, DAVANAGERE TQ DAVANAGERE DT-577 002. 2. SRI.K.T.SHIVAKUMAR S/O LATE THIPPANNA AGED ABOUT 41 YEARS, R/O KANDAGAL VILLAGE, DAVANAGERE TQ DAVANAGERE DT-577 002. 3. SMT.SHIVAGANGAMMA W/O LATE THIPPANNA AGED ABOUT 61 YEARS, R/O KANDAGAL VILLAGE, DAVANAGERE TQ DAVANAGERE DT-577 002. …APPELLANTS (BY SRI. HAREESH BHANDARY T., ADVOCATE) AND: SRI PANCHANNA S/O LATE SHIVALINGAIAH AGED ABOUT 56 YEARS, R/AT KANDAGAL VILLAGE, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 DAVANAGERE TQ DAVANAGERE DT-577 002. …RESPONDENT (BY SRI. YOGESH V KOTEMATH, ADVOCATE FOR SRI. VIRUPAKSHAIAH P.H., ADVOCATE FOR C/R) *** THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 29.11.2022 PASSED IN R.A.NO.37/2022 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.03.2022 PASSED IN O.S.NO.1/2016 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, DAVANGERE. THIS RSA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Hareesh Bhandary T., learned counsel for the appellants and Sri. Virupakshaiah P.H., learned counsel for caveator/respondent. 2. Defendants No.1 to 3 are the appellants, challenging the decree passed by the Trial Court in - 3 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 O.S.No.1/2016 in respect of immovable property, more fully described herein (hereinafter referred to as the suit schedule property) whereby the defendants were injuncted from interfering with the peaceful possession and enjoyment of the suit property which was confirmed in R.A.No.37/2022 by the first appellate Court. SCHEDULE An agricultural land bearing its Re.Sy.No.43/2, measuring 0.30 guntas, assessed at Rs.0.71, situated at Kandgal Village, Daanagere Taluk and bounded as hereunder: East: land belongs to Malleshappa West: Canal North: land belongs to Vamadevappa South: Canal Road and land belongs to Maheshwarappa 3. Facts of the case which are utmost necessary for disposal of the present appeal are as under: A suit for permanent injunction came to be filed by the plaintiff in respect of the suit property contending that the father of the plaintiff purchased the suit property by a registered Sale Deed. - 4 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 4. Huchha Veerappa, the father of the plaintiff is no more. He had two sons by name Shivalingappa and Vamadevappa. After his death, there was a family partition between Shivalingappa and Vamadevappa. After the death of Shivalingappa who is the father of the plaintiff, there was a partition in the year 1994-95 and in the said partition, property to an extent of 03 acres 17 guntas in Sy.No.43/2 was allotted to the share of Vamadevappa and remaining extent of 30 guntas was allotted to the share of Shivalingappa, whereby the plaintiff is the owner in possession of the suit properties. 5. Defendants, pursuant to the suit summons appeared before the Trial Court, denying the plaint averments and contended that they are the owners of the property in Sy.No.43/2 and by virtue of the alleged partition, the plaintiff is trying to encroach upon the defendants' property and made a false claim and sought for dismissal of the suit. - 5 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 6. Learned Trial Judge, after raising necessary issues and recording evidence of the parties, decreed the suit of the plaintiff. 7. Being aggrieved by the same, the defendants filed an appeal before the first appellate Court in R.A.No.37/2022. 8. Learned Judge of the first appellate Court, after securing the records and re-appreciation of the material on record, having heard the argument of the parties and by impugned judgment dated 29.11.2022 dismissed the appeal of the defendants and confirmed the decree of injunction passed in favour of the plaintiff. 9. Being aggrieved by the same, the defendants have filed the present appeal on the following grounds and substantial questions of law. GROUNDS That the judgment and decree passed by the Courts below are highly illegal, arbitrary, unreasonable and unsustainable under law. - 6 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 It is submitted that the Courts below have committed serious material irregularities and illegalities while appreciating the material evidence available on record and the entire approach made by the Courts below into the matter in dispute is erroneous in law. It is submitted that the plaintiff filed the suit for bare permanent injunction without having possession and without claiming declaration over the suit property. Hence the suit without possession is not maintainable. It is submitted that the plaintiff has not explained as to where the suit schedule property is in existence. The plaintiff has failed to produce any documents to show the exact existence of the property. More so, the plaintiff himself in his plaint has clearly stated that the defendants are not having any property abutting to the schedule property. Hence, it is clear that the plaintiff has filed a false suit against the defendants. It is submitted that the trial Court has not provided sufficient opportunities to furnish the documents on behalf of the defendants. Only on the basis of the plaint averments and the - 7 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 documents furnished by the plaintiff has passed the impugned judgment and decree. It is submitted that the Courts below have given much importance only on the plaint and the chief examination of the plaintiff, but has not at all gone through the cross examination of PW 1. It is submitted that the Courts have failed to apply judicial mind on documents and facts and circumstances of the case and only accepted and believed the statement of the plaintiff and comes to a wrong conclusion. It is submitted that the defendant No.2 has specifically taken up the contention in the written statement that the suit schedule property is not at all in existence in Sy.No.43. The plaintiff has utterly failed to prove the existence of the suit schedule property in Sy.No.43. This aspect has not at all considered by the Courts below. It is submitted that at para 8 of the plaint, it is stated property owned by defendants Sy.No.43/1, suit schedule property situated in Sy.No.43/2, and the property owned by the defendants not situated abutting the suit schedule property, there is no channel between Sy.No.43/1 and 43/2. But the - 8 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 Courts below failed to notice in the schedule it is stated canal is situated on the western side of the suit schedule property. This theory/ contention no canal existing between Sy.No.43/1 and 43/2 is nullified. The question. The question remains on which part of the land the said canal is running. Without examining the said aspect both the Courts below failed in appreciating the evidence/pleadings. It is submitted that the trial Court even has not at all heard the arguments of the counsel appearing for the defendants. Only after hearing the arguments on the side of the plaintiff passed the impugned judgment and decree. Even this point raised by the appellant before the 1st Appellate, but the I Appellate Court has also not considered the same and confirmed the judgment and decree of the trial Court. It is submitted that the 2nd defendant has produced sufficient materials before the trial Court to show that Sy.No.43 belongs to them. However, the trial Court blindly considered the evidence of plaintiff and passed the impugned judgment and decree and the lower Appellate Court also failed to appreciate the material placed by the appellants has confirmed the judgment and decree of the trial Court. - 9 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 SUBSTANTIAL QUESTIONS OF LAW 1) Whether the Courts below have committed serious material irregularity and illegality while appreciating the material evidence available on record? 2) Whether the Courts below failed to appreciate the pleadings at Para 8 of the plaint and the schedule of suit disproves the case of the plaintiff, where in the pleadings, it is stated suit property Sy.No.43/2 and property of the defendants 43/1 are not abutting each other, and no canal running in between. If no canal is running in between the schedule properties, the schedule on the western side depicted as canal, nullifies the whole case of the plaintiff? 3) Whether the Lower Appellate Court is justified in dismissing the appeal and confirming the judgment and decree passed by the trial Court though the defendants have placed sufficient materials before it? 4) Whether the suit of the plaintiff for bare injunction without having possession and without declaration, is maintainable? - 10 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 5) Whether the plaintiff has proved the existence of the suit schedule property in Sy.No.43 as claimed by the plaintiff in his plaint? 10. Sri.Hareesh Bhandary T., learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum, vehemently contended that no material documents are placed on record to show that the plaintiff retained 30 guntas of land in Sy.No.43/2 and by so claiming that under the partition, involving the suit property, he is trying to encroach upon the property of the defendants which is having Sy.No.43/1 of Kandagal village, Davanagere Taluk and sought for admitting the appeal on the aforesaid substantial questions of law. 11. 11. Per contra, Sri.Virupakshaiah P.H., learned counsel for the respondent supports the impugned judgment and opposed the appeal grounds. 12. Having heard the arguments of the parties, perused the material on record, meticulously. - 11 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 13. On such perusal of the records, all that the plaintiff is claiming is about 30 guntas of land in Sy.No.43/2 where defendants are the owners of the land. 14. If at all they have got any right over Sy.No.43/1, as is claimed by them and by virtue of the injunction order, if the plaintiff is interfering with the peaceful possession of the defendants, they may file a necessary suit seeking declaration of their title in Sy.No.43/1. 15. If any such comprehensive decree is passed in the intended suit, the present order of injunction would be necessarily subservient to such a decree. 16. With that observation, this Court is of the opinion that the appeal does not require further consideration. 17. Hence, the following: - 12 - HC-KAR NC: 2025:KHC:35139 RSA No. 390 of 2023 ORDER (i) Appeal is dismissed. (ii) In view of disposal of appeal, pending I.A.No.1/2023 does not survive for consideration. Sd/- (V SRISHANANDA) JUDGE BMV* List No.: 1 Sl No.: 49