- 1 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 770 OF 2015 (DEC/INJ) BETWEEN: 1. SMT. SAVITHRAMMA W/O. K.V. RAMAPPA, AGED ABOUT 49 YEARS, R/O.KOWLI VILLAGE, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 427. …APPELLANT (BY SRI. JAYAPRAKASH R.V., ADVOCATE) AND: 1. SHIVAYOGAPPA SINCE DECEASED BY HIS LRs: GEETHAMMA W/O. H.K. SHIVAYOGAPPA, AGED ABOUT 68 YEARS, R/O.THOGARSI VILLAGE, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 433 2. DEEPA W/O. KUMAR TENKALAKOTE, AGED ABOUT 42 YEARS, R/O. NEAR BASAVANNA TEMPLE, DODDAPETE, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 427. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 3. KARTHIK @ KARIBASAPPA S/O. H.K. SHIVAYOGAPPA, AGED MAJOR, WORKING AT MAHATMA GANDHI HIGH SCHOOL, R/O.THOGARSI VILLAGE, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 433. 4. H.K. BASAVARAJAPPA S/O. KARIBASAPPA, AGED ABOUT 64 YEARS, R/O.THOGARSI VILLAGE, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 433. 5. 5(a). 5(b). H.K. MALLIKARJUNAPPA S/O.KARIBASAPPA, AGED ABOUT 62 YEARS, R/O.THOGARSI VILLAGE, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 433 SINCE DECEASED BY HIS LRS: CHANDRAMATHI W/O. LATE H.K. MALLIKARJUNAPPA AGED ABOUT 50 YEARS, R/O.THOGARSI VILLAGE, P.O: THOGARSI, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 433. SUSHMA D/O. H.K. MALLIKARNUNAPPA, AGED ABOUT 30 YEARS, R/O.THOGARSI VILLAGE, P.O: THOGARSI, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 433. - 3 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 6. H.K. MRUTHYUNJAYAPPA S/O.KARIBASAPPA, AGED ABOUT 44 YEARS, R/O.THOGARSI VILLAGE, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 433. (RESPONDENT NO.6 DIED ON 17.08.2024. RSPONDENT NOS.1,2,3,4 5(a) & 5(b) AND 7 ARE TREATED AS HIS LRS) 7. PRABHULINGAPPA S/O.KARIBASAPPA, AGED ABOUT 52 YEARS, R/O.THOGARSI VILLAGE, SHIKARIPUR TALUK, SHIMOGA DISTRICT - 577 433 …RESPONDENTS [BY SRI. CHANDRASHEKAR RODNAVAR, ADVOCATE FOR R1 TO R4 AND R7, SRI. S.B. HALLI, ADVOCATE FOR R5(a) to R5(b)] THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.01.2015 PASSED IN R.A.NO.10/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, ITINERARY, SHIKARIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.02.2013 PASSED IN O.S.NO.127/2003 ON THE FILE OF THE CIVIL JUDGE & JMFC, SHIKARIPURA, SHIVAMOGGA DISTRICT AND ETC. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH JUDGMENT In this appeal, the plaintiff/appellant is assailing the judgment and decree dated 17.01.2015 in R.A.No.10/2013 on the file of Senior Civil Judge and JMFC, Itinerary, Shikaripura, confirming the judgment and decree dated 11.02.2013 in O.S.No.127/2003 on the file of Civil Judge and JMFC, Shikaripura, dismissing the suit of the plaintiff. 2. For the sake convenience, parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that, the plaintiff is the owner in possession of site bearing K.S.No.131/p, Zinzar No.62 measuring 25 feet X 30 feet situated at Thogarsi Village, Shikaripura Taluk. 4. It is further stated that, the defendants are having the property bearing No.131 measuring (361+295)2 X (144+143)/2 situated at Thogarsi Village, Shikaripura Taluk. The defendants have sold the schedule property to the plaintiff as per the registered Sale Deed dated 10.05.2001. It is stated - 5 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 in the plaint that, the suit property is situated beside the main road - Shiralakoppa-Anavatti road. 5. It is further stated in the plaint that, during the sale transaction, discussion was made with regard to road margin which has to be sold in favour of the plaintiff. However, due to oversight, the description of the property in so far as the northern and eastern side was not properly mentioned and hence, the defendants were interfering with the suit schedule property belonging to the plaintiff and as such, the plaintiff has filed suit in O.S.No.127/2003 seeking declaration with consequential relief of permanent injunction against the defendants. 6. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. 7. It is the case of the defendants that, an extent of 25 feet X 30 feet was sold in favour of the plaintiff as per the registered Sale Deed dated 10.05.2001 and further took up the contention that, the eastern side of the suit schedule property - 6 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 is adjacent to Shiralakoppa-Anavatti road. It is also stated by the defendants that, towards eastern side of the suit property Kaneshumari No.131 is situate adjacent to Shiralakoppa- Anavatti main road and Shiralakoppa-Anavatti road, which is not a State highway and therefore, it is the contention of the defendants that, the defendants are the owners in possession of the property bearing Kaneshumari Nos.131, 132 and 133 of Thogarsi Village and the same has been acquired as per the Relinquishment Deed dated 17.02.1961 and therefore, the defendants have sought for dismissal of the suit. 8. Trial Court after considering the pleadings on record has formulated the issues for its consideration. In order to prove her case, the plaintiff has examined three witnesses as P.W.1 to P.W.3 and got marked 26 documents as Exs.P1 to P26. 9. On the other hand, the defendants have examined five witnesses as D.W.1 to D.W.5 and got marked 62 documents as Exs.D1 to D62. - 7 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 10. Trial Court after considering the material on record vide judgment and decree dated 11.02.2013 dismissed the suit and feeling aggrieved by the same, the plaintiff preferred R.A.No.10/2013 before the First Appellate Court and the said appeal was resisted by the defendants. First Appellate Court after re-considering the materials on record vide judgment and decree dated 17.01.2015 dismissed the appeal and consequently, confirmed the judgment and decree in O.S.No.127/2003. Therefore, feeling aggrieved by the same, the plaintiff has preferred this appeal. 11. This Court vide order dated 09.06.2025 has formulated the substantial question of law, which reads as under: "Whether the appellant proves judgment and decree passed by the First Appellate Court is in compliance with the Order 41 Rule 31 of Code of Civil Procedure?" 12. Heard Sri. Jayaprakash R.V., learned counsel appearing for the plaintiff/appellant, Sri. Chandrashekar Rodnavar, learned counsel appearing for Respondent Nos.1 to 4 - 8 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 & 7 and Sri. S.B. Halli, learned counsel appearing for respondent Nos.5(a) and 5(b). 13. Sri. Jayaprakash R.V., learned counsel appearing for the plaintiff/appellant invited the attention of this Court to findings recorded by the First Appellate Court in R.A.No.10/2013 and submitted that, the First Appellate Court has committed an error in formulating the points for consideration, and therefore, placing the reliance on the judgments of Hon'ble Supreme Court in the case of C. VENKATA SWAMY VS. H.N. SHIVANNA (DEAD) BY LEGAL REPRESENTATIVE AND ANOTHER reported in (2018) 1 SCC 604 and contended that the First Appellate Court has not properly given the finding of facts and law on each of the issues formulated by the Trial Court and accordingly he submitted that, the First Appellate Court has committed an error in not understanding the scope and ambit of Order 41 Rule 31 of Code of Civil Procedure and as such, sought for interference of this Court. 14. It is further contended by learned counsel appearing for the plaintiff/appellant that, findings recorded by - 9 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 the Trial Court has not been interfered with by the First Appellate Court in a manner known to law as observed by the Hon'ble Supreme Court in the case of U. MANJUNATH RAO VS. U. CHANDRASHEKAR AND ANOTHER reported in (2017) 15 SCC 309 and contended that, the First Appellate Court has not properly assessed the evidence on record both oral and documentary evidence produced by the parties, resulting in miscarriage of justice by the First Appellate Court and the Trial Court and therefore, sought for interference of this Court. 15. Per contra, Sri. S.B. Halli, learned counsel appearing for respondent Nos.5(a) and 5(b) sought to justify the impugned judgment and decree passed by the Courts below and submitted that, as both the Courts below concurrently held against the appellant herein and therefore, no interference is called for in this appeal under Section 100 of Code of Civil Procedure. Accordingly, sought for dismissal of the appeal. 16. In the light of the submissions made by learned counsels appearing for the parties I have carefully perused the original records. It is the case of the plaintiff before the Trial - 10 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 Court that, the plaintiff had purchased the suit property as per registered Sale Deed dated 10.05.2001 (Ex.P21). The dispute in the present appeal is with regard to boundaries of the suit property as discussed by the Trial Court and the First Appellate Court. In this regard, on perusal of the Sale Deed dated 10.05.2001 (Ex.P21) makes it clear that, the schedule to the property is narrated at paragraph No.12 in the judgment and decree passed by the Trial Court. Boundaries to the suit property as per Ex.P21 is as follows: East by : Anavatti - Shiralakoppa Road West by : Remaining property belonging to defendants. North by : Kaneshumari Sy.No.133 South by : Remaining property belonging to the defendants. 17. It is also to be noted that, the defendant have acquire the land Kaneshumari No. 133 as per Relinquishment Deed (Ex.D9) said to have been executed by Sri. Channabasappa in favour of Karibasappa. The Relinquishment Deed dated 17.02.2961 has been produced at Ex. D9 by the defendant and the schedule to Kaneshumari No. 133 is as follows: *Page No.10 retyped and replaced vide Court Order dated 08.09.2025. - 11 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 East by: Anavatti-Shiralakoppa Road West by: Kodihalli Shivajigowda vacant site North by: Gramapanchayath Road (Now Soraba Road) South by: Land bearing Sy. No. 71 (Rice Mill) 18. In that view of the matter, it is not in dispute that the plaintiff/appellant had purchased land to an extent of 25 feet X 30 feet in a site bearing K.S.No.131/p. It has to be taken into consideration that, there is no dispute with regard to title of the suit schedule property belonging to the plaintiff/appellant. However, the dispute is only with regard to the boundaries. Irrespective of the factual aspects on record, the extent of land sold in favour of the plaintiff/appellant by the defendants is to an extent of 25 feet X 30 feet as per the registered Sale Deed dated 10.05.2001 (Ex.P21). In the backdrop of these aspects, on careful consideration of issue No.4, the Trial Court has rightly dealt and arrived at a conclusion that the plaintiff has failed to prove that the northern boundary of the suit property has been wrongly shown in the registered Sale Deed dated 10.05.2001 (Ex.P21). *Page No.11 retyped and replaced vide Court Order dated 08.09.2025. - 12 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 19. Taking into consideration, the arguments advanced by Sri. Jayaprakash R.V., learned counsel appearing for the plaintiff/appellant. I have carefully examined the reasons assigned by the First Appellate Court at paragraph Nos.12 to 24 wherein, First Appellate Court after taking into consideration, the deposition in cross-examination of PW1 and evidence of D.W.3 has rightly arrived at a conclusion that the oral and documentary evidence produced by the plaintiff/appellant does not show the existence of the road towards northern side i.e., Soraba Road of the suit property. In that view of the matter, taking into consideration, the judgments referred to by the learned counsel for the plaintiff/appellant, the First Appellate Court after re-appreciating the entire material on record has assigned reasons and judgment has been given by analyzing oral and documentary evidence of the parties, keeping in view, the scope and ambit of Order 41 Rule 31 of Code of Civil Procedure. 20. Though the point for consideration at paragraph No.10 is only with regard to considering whether the judgment and decree in O.S.no.127/2003 is erroneous and illegal, - 13 - HC-KAR NC: 2025:KHC:29137 RSA No. 770 of 2015 however, the First Appellate Court has considered both oral and documentary evidence in detail produced by the parties and therefore, the judgment and decree passed by the First Appellate Court is within the purview of Order 41 Rule 31 read with Section 96 of Code of Civil Procedure and fulfill the conditions supported by the Hon'ble Supreme Court in the case of SANTHOSH HAZARI VS. PURUSHOTHAM TIWARI reported in (2001) 3 SCC 179. 21. Therefore, the substantial question of law referred to above favours the defendants and no interference is called for in this appeal. Accordingly, this Regular Second Appeal is dismissed. SD/- (E.S.INDIRESH) JUDGE KLV List No.: 1 Sl No.: 43