- 1 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.1952 OF 2015 (INJ) BETWEEN: NAGARAJ SINCE DECEASED BY HIS LRS. 1. SMT. SUJATHA W/O LATE NAGARAJU, AGED ABOUT 42 YEARS. 2. SRI. BHARATH S/O LATE NAGARAJU, AGED ABOUT 21 YEARS. 3. KUM. TEJESHWARI D/O LATE NAGARAJU, AGED ABOUT 20 YEARS. ALL ARE RESIDING AT: KENKERE VILLAGE, GANDSI HOBLI, ARASIKERE TALUK - 573 103. …APPELLANTS (BY SRI. SHIVARAMU H.C., ADVOCATE) AND: SRI. HUCHEGOWDA S/O DEVAIAH AGE: MAJOR, R/AT KENKERE VILLAGE, GANDSI HOBLI, ARASIKERE TALUK - 573 103. …RESPONDENT (BY SRI. B.R. RAGHAVENDRA, ADVOCATE FOR SRI. K.S. RAMASWAMY IYENGAR, ADVOCATE) Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 10TH SEPTEMBER, 2015 PASSED IN REGULAR APPEAL NO.15 OF 2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARSIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07TH JUNE, 2013 PASSED IN ORIGINAL SUIT NO.176 OF 2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., ARASIKERE. THIS APPEAL COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH ORAL JUDGMENT This appeal is preferred by the legal representatives of the original plaintiff, challenging the judgment and decree dated 10th September, 2015 passed in Regular Appeal No.15 of 2013 on the file of Senior Civil Judge and JMFC., Arsikere (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 07th June, 2013 passed in Original Suit No.176 of 2002 on the file of Principal Civil Judge and JMFC., Arasikere (for short, hereinafter referred to as 'Trial Court'), wherein the suit of the plaintiff came to be dismissed. - 3 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 2. For the sake of convenience, the parties in this appeal are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the suit schedule property was granted to the father of the original plaintiff and the plaintiff had constructed the house and he was in possession and enjoyment of the suit schedule property. It is the grievance of the plaintiff that the defendant, without any lawful right or title in respect of the suit schedule property, interfered with the peaceful possession and enjoyment of the suit schedule property and as such, the plaintiff filed the instant suit, seeking relief of permanent injunction. 4. After service of notice, defendant entered appearance and filed detailed written statement. The specific case of the defendant is that the property measuring East to West 48 feet and North to South 35 feet situate towards the Eastern side of the property of the plaintiff, is belonged to the defendant and he has constructed a house by leaving a space towards the Western side of his constructed house. Accordingly, he sought for dismissal of the suit. - 4 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 5. The Trial Court, based on pleadings on record, formulated issues for its consideration. 6. In order to establish their case, plaintiff examined two witnesses as PW1 and PW2 and got marked 7 documents as Exhibits P1 to P7. On the other hand, defendant himself was examined as DW1 and got marked 2 documents as Exhibits D1 and D2. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 07th June, 2013, dismissed the suit of the plaintiff. Being aggrieved by the same, the legal representatives of the plaintiff preferred Regular Appeal No.15 of 2013 before the First Appellate Court and same was contested by the defendant. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 10th September, 2015, dismissed the appeal and consequently confirmed the judgment and decree dated 07th June, 2013 passed by the Trial Court in Original Suit No.176 of 2002. Hence, the legal representatives of the plaintiff have preferred this appeal. - 5 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 8. This Court, by order dated 22nd August, 2019, admitted the appeal to consider the following substantial question of law: "Whether the Courts below could have disregarded the evidence which established that the plaintiff was the owner of the property measuring East to West 23 feet comprising of constructed area measuring East to West 22 feet with open space of 3 feet only because the pleadings in this regard in the plaint was not detailed enough? 9. Heard Sri. H.C. Shivaramu, learned counsel appearing for appellants and Sri. B.R. Raghavendra, learned counsel on behalf of Sri. K.R. Ramaswamy Iyengar, appearing for the respondent. 10. Sri. H.C. Shivaramu, learned counsel appearing for appellants contended that the relief sought for by the plaintiff is granting of permanent injunction against the defendant in respect of the suit schedule property and the defendant has not questioned the title of the plaintiff. Learned counsel appearing for appellants invited the attention of the Court to the cross- examination of DW1 dated 06th August, 2003 and contended that, though the defendant himself admitted the possession of - 6 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 the plaintiff in the suit schedule property, the said admission was ignored by both the Courts below. Accordingly, he sought for interference of this Court. 11. By referring to the Commissioner Report dated 19th November, 2010, learned counsel appearing for appellants contended that, both the parties agreed the possession of the parties as per the report of the Commissioner and therefore, the finding recorded by both the Courts below requires to be set-aside in this appeal. 12. Per contra, Sri. B.R. Raghavendra, learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by both the Courts below and contended that the dispute between the parties is with regard to measurement of the properties. In this regard, learned counsel appearing for the respondent referred to the finding recorded by the First Appellate Court at paragraph 17 and submitted that the impugned judgment and decree passed by the Courts below is just and proper and accordingly, no interference be called for in this appeal. - 7 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 13. Having heard the learned counsel appearing for the parties, I have carefully examined the material on record and perused the finding recorded by both the Courts below. On perusal of the same, the defendant has not disputed the title of the plaintiff in the written statement as well as in the evidence. The plaintiff produced Exhibit P1-Residential Certificate and Exhibit P6-House Assessment Extract and proved his possession in the suit schedule property. In the backdrop of these aspects, I have carefully examined the cross-examination of DW1 dated 06th August, 2003, wherein, the defendant No.1 deposed as follows: "ªÁ¢AiÀÄ ªÀÄ£ÉUÉ ¸ÀA§AzsÀ ¥ÀlÖ zÁR¯ÉUÁ¼ÀÄ £Á£ÀÄ £ÉÆÃr®è. ªÁ¢AiÀÄ ªÀÄ£ÉUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ K£ÀÄ zÁR¯ÉUÀ¼ÀÄ EªÉ ºÁUÀÆ K£ÉãÀÄ £ÀqÀªÀ½PÉUÀ¼ÀÄ DVzÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. ªÁ¢ vÀ£Àß ªÀÄ£ÉAiÀÄ°è PÀ¼ÉzÀ 20 ªÀµÀðUÀ½AzÀ ªÁ¸ÀªÁVzÁÝ£É. DV¤AzÀ £À£Àß ªÀÄvÀÄÛ ªÁ¢AiÀÄ £ÀqÀÄªÉ AiÀiÁªÀÅzÉà vÀAmÉ vÀPÀgÁgÀÄ E®è. ªÁ¢ ¨Éð vÉUÉAiÀÄ®Ä ¥ÀæAiÀÄw߸ÀĪÀÅzÀQÌAvÀ ªÉÆzÀ®Ä AiÀiÁªÀÅzÉà vÀAmÉ vÀPÀgÁgÀÄ EgÀ°®è. F zÁªÁzÀ°è vÉÆÃj¹zÀ zÁªÁ C£ÀĸÀÆa D¹ÛAiÀįÉèà ªÁ¢ ªÁ¸ÀªÁVzÁÝ£ÉAzÀgÉ ¤d." (emphasis supplied) 14. In cross-examination, the defendant had deposed that the plaintiff is in possession of the suit schedule property for more than twenty years. It is clear that the defendant had - 8 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 not disputed the title of the plaintiff in respect of the suit schedule property and that apart, the defendant admits that the plaintiff is in possession of the same. In that view of the matter, I am of the view that the Trial Court ought to have decreed the suit of the plaintiff with regard to grant of permanent injunction. I have also noticed the finding recorded by the First Appellate Court in the impugned judgment, wherein at paragraph 17, the First Appellate Court has exceeded its jurisdiction and arrived at a conclusion that there is a serious dispute with regard to measurement of the suit schedule property. The said finding recorded by the First Appellate Court is contrary to records particularly in respect of the report of the Commissioner dated 19th November, 2010, wherein, none of the parties have disputed the sketch prepared by the Commissioner. Therefore, I am of the considered opinion that, both the Courts below have committed an error. In that view of the matter, the substantial question of law referred to above favours the plaintiff. Hence, I pass the following: O R D E R i) Regular Second Appeal allowed; - 9 - HC-KAR NC: 2025:KHC:36777 RSA NO.1952 OF 2015 ii) Judgment an decree dated 10th September, 2015 passed in Regular Appeal No.15 of 2013 on the file of the Senior Civil Judge and JMFC., Arsikere and judgment and decree dated 07th June, 2013 passed in Original Suit No.176 of 2002 on the file of the Principal Civil Judge and JMFC., Arasikere are hereby set-aside; iii) Suit of the plaintiff is hereby decreed. SD/- (E.S. INDIRESH) JUDGE ARK List No.: 1 Sl No.: 37