- 1 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.343 OF 2015 (DEC/INJ) BETWEEN: 1. M.G. KALE GOWDA S/O SHESHE GOWDA, AGED ABOUT 59 YEARS. 2. M.G. KRISHNE GOWDA S/O GIDDE GOWDA, AGED ABOUT 53 YEARS. 3. M.G. MOHAN S/O GIDDE GOWDA, AGED ABOUT 44 YEARS. 4. M.G. MURALIDHAR S/O GIDDE GOWDA, AGED ABOUT 42 YEARS. APPELLANTS NO.1 TO 4 ARE R/AT CHIKKALLA, GULLANPET POST, CHIKKAMAGALURU TALUK - 577 101. 5. M.G. JAGADISH S/O GIDDE GOWDA, AGED ABOUT 50 YEARS, R/AT MANIMAKKI, KELAGOOR POST, CHIKKAMANGALURU TALUK - 577 101. 6. H.N. KRISHNEGOWDA S/O NINGE GOWDA, AGED ABOUT 57 YEARS, R/AT HARALAGADDE - SATIHALLI VILLAGE, Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 CHIKKAMAGALURU TALUK, CHIKKAMAGALURU DISTRICT - 577 101. 7. 8. SMT. HOOVAMMA SINCE DECEASED, REP. BY LRS. APPELLANTS 1 TO 5. SMT. JYOTHI D/O GIDDE GOWDA, AGED ABOUT 84 YEARS, CHIKKALLA, GULLANPET POST CHIKKAMAGALURU TALUK - 577 101. 9. Y.J. NAVEEN GOWDA S/O GOPALAGOWDA AGED ABOUT 34 YEARS. 10. Y.J. SIDDHARTHA S/O JANARDHANA GOWDA, AGED ABOUT 28 YEARS. 11. K.C. NANJEGOWDA S/O CHANNEGOWDA, AGED ABOUT 57 YEARS. APPELLANTS NO.9 TO 11 ARE R/AT SATIHALLI VILLAGE, GULLANPET POST, CHIKKAMAGALURU TALUK, CHIKKAMAGALURU DISTRICT -577 101. 12. M.N. ASHWATH S/O NINGEGOWDA, AGED ABOUT 42 YEARS, R/AT MAKONAHALLI POST, MUDIGERE TALUK, CHIKKAMAGALURU DISTRICT - 577 132. 13. B.R. SHAMBU S/O RANGAPPA, AGED ABOUT 52 YEARS, R/AT BILAGOLA POST, - 3 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 MUDIGERE TALUK, CHIKKAMAGALURU DISTRICT - 577 132. …APPELLANTS (BY SRI. SAI PRAKASH, ADVOCATE) AND: 1. C.R. LAKSHMANA GOWDA S/O RUDRE GOWDA, AGED ABOUT 65 YEARS, CHIKKALLA, SATTIHALLI VILLAGE, CHIKKAMAGALURU TALUK - 577 101. 2. C.S. BASEGOWDA S/O SHESHEGOWDA, AGED ABOUT 62 YEARS, KELACHIKKALLA, SATTIHALLI VILLAGE, CHIKMAGALURU TALUK - 577 101. 3. STATE OF KARNATAKA VIDHANA SOUDHA, DR. AMBEDKAR VEEDI, BENGALURU - 560 001. REP. BY ITS CHIEF SECRETARY. 4. THE TAHASILDAR CHIKKAMAGALURU TALUK, CHIKKAMAGALURU - 577 101. 5. THE REVENUE INSPECTOR ALDUR POST, ALDUR HOBLI, CHIKKAMAGALURU DISTRICT - 577 101. …RESPONDENTS (BY SRI. PRAKASH M.H., ADVOCATE FOR C/R1; SRI. HANUMANTHARAYA LAGALI, AGA FOR R3 TO R5; R2 - SERVED AND UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGEMENT AND DECREE DATED 14TH JANUARY, 2015 PASSED - 4 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 IN REGULAR APPEAL NO.142 OF 2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 03RD OCTOBER, 2013 PASSED IN ORIGINAL SUIT NO.414 OF 2006 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC., CHIKKAMAGALURU. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH ORAL JUDGMENT This appeal is preferred by plaintiffs in Original Suit No.414 of 2006, challenging the judgment and decree dated 14th January, 2015 passed in Regular Appeal Nos.142 of 2013 on the file of the Principal Senior Civil Judge, Chikkamagaluru (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 03rd October, 2013 passed in Original Suit Nos.414 of 2006 on the file of II Additional Civil Judge and JMFC., Chikkamagaluru (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiffs in Original Suit No.414 of 2006 came to be dismissed. 2. For the sake of convenience, parties in this appeal are referred to as per their ranking in Original Suit No.414 of 2006 before the Trial Court. - 5 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 3. The facts in nutshell for adjudication of this appeal are that the plaintiffs in Original Suit No.414 of 2006 claim that, they are the owners in possession of 'A' Schedule property. The 'B' Schedule property belonged to the defendant No.1 and 'C' schedule property bearing Survey No.159 measuring 80 x 15 feet belongs to the Government. The grievance of the plaintiffs is with regard to easementary right in respect of 'C' schedule property having been used as road for more than four decades. It is also stated that the defendant No.1 interfered with the right of the plaintiffs and as such, plaintiffs filed Original Suit No.414 of 2006, seeking declaration of easementary right by prescription over the 'C' schedule property with consequential relief of permanent injunction. 4. After service of notice, defendant No.1 entered appearance and filed detailed written statement denying the averments made in the plaint. 5. It is the specific contention of the defendant No.1 that one Sri. C.S. Base Gowda (brother of plaintiff No.1) has filed Original Suit No.440 of 2003, seeking relief of injunction, which came to be dismissed by the competent court and therefore, - 6 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 the suit is required to be dismissed under Section 11 of the Code of Civil Procedure. 6. It is the further case of the defendant No.1 that the entire property bearing Survey No.384/P2 and 155/2P2 belonged to the defendant No.1 having been acquired through family partition and therefore, disputes existence of the road in 'C' schedule property and accordingly sought for dismissal of the suit of the plaintiffs in Original Suit No.414 of 2006. 7. The defendant No.1 in Original Suit No.414 of 2006 has filed Original Suit No.327 of 2006, claiming relief of permanent injunction against the plaintiffs in Original Suit No.414 of 2006 on similar averments. 8. Both the suits were clubbed together and evidence was recorded. 9. The Trial Court, based on the pleadings on record, formulated issues and additional issue for its consideration. 10. The plaintiffs in Original Suit No.414 of 2006 examined 4 witnesses as PW1 to PW4 and got marked 32 documents as Exhibits P1 to P32. On the other hand, - 7 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 defendants examined 2 witnesses as DW1 and DW2 and got marked 12 documents as Exhibits D1 to D12. The Court Commissioner was appointed and he was examined as CW1 and on his behalf 3 documents were marked as Exhibits C1 to C3. 11. In Original Suit No.327 of 2006, plaintiff (defendant No.1 in O.S. No.414 of 2006) examined one witness as PW1 and got marked 8 documents as Exhibits P1 to P8. On the other hand, defendants examined one witness as DW1 and got marked 16 documents as Exhibit D1 to D16. 12. The Trial Court, after considering the material on record, by its judgment and decree dated 03rd October, 2013, dismissed the suit in Original Suit No.414 of 2006 and decreed the suit in Original Suit No.327 of 2006. Being aggrieved by the same, appellants herein have preferred Regular Appeal Nos.142 of 2013 and 135 of 2013 before the First Appellate Court and same were resisted by the respondents therein. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 14th January, 2015, dismissed the appeals and as such, confirmed the judgment - 8 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 and decree passed by the Trial Court in Original Suit Nos.414 of 2006 and 327 of 2006. Being aggrieved by the same, plaintiffs in Original Suit No.414 of 2006 preferred this second appeal, seeking interference of this Court. 13. Heard Sri. Sai Prakash, learned counsel appearing for appellants; Sri. Prakash M.H., learned counsel appearing for the respondent No.1; and Sri. Hanumantharaya Lagali, learned Additional Government Advocate appearing for respondents 3 to 5. 14. Sri. Sai Prakash, learned counsel appearing for appellants contended that, both the Courts below committed an error in not considering the fact that the 'C' schedule property mentioned in the plaint is a road belonging to the plaintiffs, though the said aspect has been considered in the Commissioner Report produced at Exhibit C1. Accordingly, he sought for interference of this Court. 15. Learned counsel appearing for appellants filed two applications IA.4 of 2025 and IA.5 of 2025 under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure and produced certain documents as additional evidence. - 9 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 16. By referring to internal correspondence letter dated 20th July, 2022 addressed by the Tahsildar, Chikkamagaluru Taluk to the Assistant Commissioner, Revenue Sub-Division, Chikkamagaluru, learned counsel appearing for appellants contended that the existence of the road is reflected as per the Map and therefore, sought for interference of this Court as the said aspect of the matter was ignored by both the Courts below. 17. Referring to Kethuvar Register produced in the application IA.5 of 2025, learned counsel appearing for appellants contended that the property was acquired by the plaintiffs and they are using the 'C' schedule property for time immemorial and accordingly, submitted thatthe documents produced in the applications would substantiate the case of the plaintiffs insofar as the existence of the road is concerned. 18. Per contra, Sri. Prakash M.H., learned counsel appearing for the respondent No.1 referring to the judgment and decree passed in Original Suit No.440 of 2003 (Exhibits P4 and P5 in O.S. No.327 of 2006), contended that the lis between the parties is adjudicated in the said suit and therefore suit filed - 10 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 by the appellants herein itself is not maintainable. It is also contended by learned counsel appearing for the respondent No.1 that the letter dated 20th July, 2022 addressed by the Tahsildar, Chikkamagaluru Taluk to the Assistant Commissioner, Revenue Sub-Division, Chikkamagaluru was challenged in Writ Petition No.16579 of 2022 and this Court, by order dated 28th March, 2024, quashed the said communication and same has reached finality. He also refers to the order dated 24th February, 2025 passed in Writ Petition No.5348 of 2025 and submitted that the respondent/defendant No.1 herein is the petitioner in the said writ petition and this Court, permitted the respondent No.1 herein to put-up the fence to close down the road and therefore, the finding recorded by both the Courts below is required to be confirmed in this appeal. 19. In the light of submission made by learned counsel appearing for the parties, the relief sought for by the appellants herein in Original Suit No.414 of 2006 is declaration of easement by prescription over 'C' schedule property and consequential relief of permanent injunction. I have perused the original records of the Courts below. On careful - 11 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 examination of the schedule in the plaint in Original Suit No.414 of 2006, which makes it clear that the plaintiffs have not described the 'A' schedule property in which, they are claiming dominant heritage in the suit. It is well settled principle in law that the suit for declaration is not maintainable in the absence of description of the schedule in the plaint and the schedule property is to be identifiable. In this regard, it is relevant to cite the judgment of the Hon'ble Supreme Court in the case of MARY PUSHPAM vs. TELVI CURUSUMARY AND OTHERS reported in AIR 2024 SC 714. The suit seeking relief of declaration is not maintainable without describing the boundaries of the schedule property. I have also perused the judgment and decree dated 18th March, 2006 passed in Original Suit No.440 of 2003 filed by one C.S. Basegowda, who is the plaintiff No.2 in Original Suit No.414 of 2006, wherein the issue No.1 reads as under: 1) Whether plaintiff proves the existence of public road in suit schedule property? 20. The said issue is answered negatively by the Trial Court and same has reached finality. In that view of the matter, as the parties have understood the case and lead the - 12 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 evidence in the said case, the second suit in Original Suit No.414 of 2006 is not maintainable. In this regard, it is relevant to cite the judgment of the Hon'ble Supreme Court in the case of JOSE vs. JOHNSON reported in (2020) 3 SCC 780, wherein, it is held that, if the parties understood the case and adduced evidence based on the issue formulated in the suit, the finding recorded by the Court in the earlier suit is binding on the subsequent suit. In that view of the matter, I am of the view that the finding recorded by both the Courts below is just and proper. 21. I have perused the Exhibit C1-Commissioner Report, wherein the Court Commissioner has pointed out in the report that the 'C' Schedule property in the suit is the private land and therefore, the finding recorded by both the courts below required to be confirmed in this appeal. It is also to be noted that the finding recorded by both the Courts below in the facts is based on the appreciation of evidence by the parties and that apart, in view of the judgment and decree passed in Original Suit No.440 of 2003, which has reached finality, I am of the view that no interference be called for in this appeal as - 13 - HC-KAR NC: 2025:KHC:32770 RSA NO.343 OF 2015 there is no perversity in the judgment and decree passed by both the courts below. 22. For the forgoing reasons, appellants have not made out the case for formulation of substantial question of law as required under Section 100 of the Code of Civil Procedure. Accordingly, appeal is dismissed at the stage of Admission itself. Consequently, applications IA.4 of 2025 and IA.5 of 2025 filed by the appellants under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure are dismissed. SD/- (E.S. INDIRESH) JUDGE ARK List No.: 3 Sl No.: 22