- 1 - HC-KAR NC: 2025:KHC:48247 RSA No. 1452 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1452 OF 2022 (DEC/POS) BETWEEN: 1. NARGIS W/O LATE B MOHAMMED ISAQ AGED ABOUT 48 YEARS 2. KUM. MONA D/O LATE B MOHAMMED ISAQ AGED ABOUT 27 YEARS 3. SALAUDDIN S/O LATE B MOHAMMED ISAQ AGED ABOUT 23 YEARS APPELLANTS ARE R/O BHANDIGADI VILLAGE AND POST KOPPA TALUK-577126 CHICKMAGALUR DISTRICT APPELLANTS 1 AND 2 ARE REP. BY THEIR GPA HOLDER AND THIRD APPELLANT SALAUDDIN …APPELLANTS (BY SRI S V PRAKASH, ADVOCATE) AND: SWETHA W/O LATE S PURUSHOTHAM AGED ABOUT 41 YEARS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:48247 RSA No. 1452 of 2022 R/O SHANKARAMANE HALAMATTHUR VILLAGE AND POST KOPPA TALUK-577126 CHICKAMAGALUR DISTRICT …RESPONDENT (BY SRI GANGI REDDY B V, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.07.2022 PASSED IN R.A.NO.18/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., N.R. PURA, ITINERATE AT KOPPA AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court. 2. This matter is listed for admission. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff is the absolute owner of suit schedule ‘A’ and ‘B’ properties and suit schedule ‘C’ and ‘D’ properties are the part and parcel of the suit schedule ‘A’ and - 3 - HC-KAR NC: 2025:KHC:48247 RSA No. 1452 of 2022 ‘B’ properties and hence, she is entitled for possession of suit ‘C’ and ‘D’ schedule properties from the defendant. The defendants appeared and filed the written statement contending that phodi sketches in respect of the suit schedule properties are at variance with the survey sketches and also it is the contention of the defendants that they have purchased the property to the extent of 2 acres including 2 guntas of karab land which is part and parcel of Sy.No.13. 4. The Trial Court having considered the pleadings of the parties, framed the Issues and also allowed the parties to lead their evidence. The Trial Court having considered both oral and documentary evidence placed on record, held that the plaintiff already filed a suit for permanent injunction to the extent of what she has purchased. When the relief is sought for declaration and possession, Commissioner was also appointed by the Trial Court and Commissioner also submitted the report and objection was also filed to the said report. The Commissioner was also examined before for the Trial Court as CW1. The report of the Commissioner is very clear that even though the defendants are having 2 acres of land including 2 guntas of Karab land, they are in possession to the extent of 3 - 4 - HC-KAR NC: 2025:KHC:48247 RSA No. 1452 of 2022 acres 10 guntas. When such material is available, in paragraphs 30 to 32, the Trial Court in detail discussed the same. Apart from that already phodi work was done and the said phodi also not challenged by the defendants except stating that phodi work is false and nothing was placed on record to substantiate their contention. Hence, the Trial Court considering both oral and documentary evidence placed on record, decreed the suit of the plaintiff. 5. Being aggrieved by the judgment of the Trial Court, an appeal was preferred before the First Appellate Court. The First Appellate Court also having considered the grounds urged in the appeal, formulated the points and having re-appreciated both oral and documentary evidence placed on record, in paragraph 37 taking note of the Commissioner's report, held that the extent of land of the appellants is only to the extent of 2 acres including 2 guntas of karab land but they are in possession to the extent of 3 acres 10 guntas. Such being the case, the First Appellate Court comes to the conclusion that the Trial Court has not committed any error in decreeing the suit of the plaintiff and confirmed the judgment of the Trial Court. - 5 - HC-KAR NC: 2025:KHC:48247 RSA No. 1452 of 2022 being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court. 6. The learned counsel appearing for the appellants would vehemently contend that both the Courts have committed an error in considering the material on record and both the Courts have not examined the commissioner report properly to know that whether the said report is having any evidentiary value in view of the facts elicited in the cross- examination of the Court Commissioner. Hence, prayed this Court to admit the appeal and frame substantial question of law. 7. The learned counsel appearing for the respondent would vehemently contend that both the Courts have considered both oral and documentary evidence placed on record in a proper perspective and hence, interference of this Court does not require. 8. Head the learned counsel appearing for the respective parties and also perused the material on record. It is not in dispute that the property is carved out of Sy.No.13. The plaintiff claims the property in the same survey number and the defendants also claim the same in the same survey number. - 6 - HC-KAR NC: 2025:KHC:48247 RSA No. 1452 of 2022 The records discloses that the defendants are in excessive possession of 1 acre 10 guntas of land which belongs to the plaintiff but the extent of land of the defendants is only to the extent of 2 acres including 2 guntas of karab and the Commissioner also demarcated the property of ‘A’ and ‘B’ schedule properties and Commissioner report is very clear that ‘C’ and ‘D’ properties are the part and parcel of ‘A’ and ‘B’ schedule properties. When such materials are considered by the Trial Court and First Appellate Court, I do not find any perversity in the finding of both the Courts and the same is also based on the Commissioner's report and Commissioner also cross-examined before the Trial Court but nothing is elicited as contended by the defendants. Thus, it is very clear that the appellants are in excessive possession of 1 acre 10 guntas. Hence, the Trial Court rightly ordered to deliver the possession of ‘C’ and ‘D’ schedule properties which is part and parcel of ‘A’ and ‘B’ schedule properties which is in the encroachment made by the appellants. Thus, no ground is made out to invoke Section 100 CPC since both the question of fact and question of law is considered by both the Courts. - 7 - HC-KAR NC: 2025:KHC:48247 RSA No. 1452 of 2022 9. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed. Sd/- (H.P.SANDESH) JUDGE SN