- 1 - HC-KAR NC: 2025:KHC:40634 RSA No. 917 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.917 OF 2024 (INJ) BETWEEN: 1. K.G.SURESH, S/O K.G. DEVENDRAPPA, AGED ABOUT 48 YEARS, R/O NEAR STADIUM, KUMSI VILLAGE, SHIVAMOGGA TALUK-577 201. …APPELLANT (BY SRI. P.N. HARISH, ADVOCATE) AND: 1. K.G.KUMARAPPA, S/O K.G.BASAPPA, AGED ABOUT 79 YEARS, R/O OLD KUMSI VILLAGE, SHIVAMOGGA TALUK-577 201. …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.03.2024 PASSED IN R.A.NO.131/2022 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 26.07.2022 PASSED IN O.S.NO.279/2016 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40634 RSA No. 917 of 2024 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellant. 2. The Trial Court when the relief is sought for permanent injunction, dismissed the suit in coming to the conclusion that the boundaries shown in the plaint and the documents which have been placed before the Court not tallies with each other and contrary to each other and the same is observed in paragraph No.20. Even in tabular column also shown the same. In paragraph No.21, an observation is made that the boundary stated by the plaintiff in respect of the suit schedule property completely corroborates with the boundary mentioned in rest of property bearing khatha No.953 in Exs.P.2 and 4. But, the said boundary is completely contrary to the boundary given by the plaintiff to the plaint schedule and hence comes to the conclusion that the boundary narrated in the partition deed and the plaint schedule not tallies with each other. The Trial Court also observed that when the plaintiff failed to prove - 3 - HC-KAR NC: 2025:KHC:40634 RSA No. 917 of 2024 the boundary given by him to the plaint schedule by adducing oral and documentary evidence, the question of granting the relief does not arise that he is in peaceful possession and enjoyment of the property, which comes within the boundary narrated in the plaint schedule and hence dismissed the suit. 3. Being aggrieved by the said order, an appeal is filed in R.A.No.131/2022. The First Appellate Court having re-assessed the material available on record and considering the grounds urged in the appeal, confirmed the judgment of the Trial Court that the Trial Court has not committed any error in coming to such a conclusion and both oral and documentary evidence placed on record are considered by the Trial Court and comparing the same, in paragraph No.19 comes to the conclusion that on perusal of both documents, both documents discloses that the plaintiff is in possession of the property, which is in existence within the boundaries mentioned thereon does not tally with each other. But the boundaries mentioned in Exs.P.2 and 4 and the boundaries given by the plaintiff himself to the plaint schedule are - 4 - HC-KAR NC: 2025:KHC:40634 RSA No. 917 of 2024 contrary to each other and both boundaries not tallies with each other and comes to the conclusion that the question of interference does not arise. 4. Being aggrieved by the said concurrent finding, the present second appeal is filed before this Court. 5. The main contention of the learned counsel for the appellant is that an application was filed seeking permission of the First Appellate Court to withdraw the appeal, but the same was dismissed and ought to have given the permission. On perusal of the order sheet, it discloses that after the pronouncement of judgment, the said application was filed and hence the second substantial question of law suggested by the learned counsel for the appellant does not arise for consideration of this Court and only the first substantial question of law suggested to this Court that the Trial Court committed an error in dismissing the suit even after coming to the conclusion that the documents produced by the defendant does not relate to the suit schedule property arises for the consideration of this - 5 - HC-KAR NC: 2025:KHC:40634 RSA No. 917 of 2024 Court. When such observation is made and the same is with regard to the claim made by the defendant, coming to such a conclusion will not enure the benefit in favour of the plaintiff that he is not in possession of the property. Even the said substantial question of law suggested by the learned counsel will not arise for the consideration of this Court as the plaintiff has to prove the boundary and possession. The reasoning that the defendant has not proved his case cannot be a ground to grant the decree and the plaintiff has to establish the same. Hence, I do not find any ground to admit the appeal and frame any substantial question of law. 6. The Trial Court as well as the First Appellate Court having considered the documents, which have been relied upon by the plaintiff and the boundaries mentioned in the plaint, when definite conclusion was arrived at by the Trial Court in paragraph No.20 even extracting the description of Exs.P.2 and 4 and also description of the property mentioned in the plaint schedule, not committed any error in coming to such a conclusion with regard to not proving of the boundary mentioned in the plaint and also the - 6 - HC-KAR NC: 2025:KHC:40634 RSA No. 917 of 2024 documents. However, the learned counsel for the appellant submits that he is going to make necessary corrections in the partition deed and the mistake was crept in inadvertently in mentioning the same and liberty may be given to file a fresh suit after making necessary corrections. Hence, such liberty is given to the appellant and with this liberty, the second appeal is dismissed as no grounds to admit the second appeal and frame any substantial question of law. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 34