- 1 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 5264 OF 2010 (INJ) BETWEEN: SMT. LAXMIBAI W/O. MANOHAR KADAM AGE: 39 YEARS, OCC: HOUSEHOLD WORK R/O: HIDKAL, TAL:RAIBAG, DIST: BELGAUM-591317 …APPELLANT (BY SRI. SRINAND A. PACHHAPURE, ADVOCATE) AND: 1. THE SECRETARY GRAM PANCHAYAT HIDKAL, TAL: RAIBAG, DIST: BELGAUM-591317. 2. SRI. BHIMAPPA APPANNA BANAHATTI AGE: 42 YEARS, OCC: AGRICULTURE, EX-CHAIRMAN OF GRAM PANCHAYAT, HIDKAL, TAL:RAIBAG DIST: BELGAUM-591317. …RESPONDENTS (NOTICE SERVED TO R1 AND R2) THIS RSA FILED U/S. 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED:05-03-2010 PASSED IN R.A.NO:267/2008 ON THE FILE OF THE CIVIL JUDGE (SR.DN) RAIBAG, ALLOWING THE APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED:25-01-2007 PASSED IN O.S.NO:82/2005 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) RAIBAG, DECREEING THE SUIT FILED FOR PERPETUAL INJUNCTION. CHANABASAPPA K KALLUR Digitally signed by CHANABASAPPA K KALLUR Date: 2025.09.09 10:54:21 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The appellant/plaintiff has preferred this regular second appeal against the Judgment and Decree dated 05.03.2010 passed in the RA.No.267/2008 by the Civil Judge, (Sr.Dn.), Raibag (for short, ‘the first appellate Court’), whereby the first appellate Court has reversed the Judgment and Decree dated 25.01.2007 passed in O.S.No.82/2005 by the Additional Civil Judge (Jr.Dn.), Raibag (for short, ‘the trial Court’) in favour of the plaintiff. 2. The parties are referred to as per their rank before the trial Court. 3. Brief facts leading to filing of this appeal are that the appellant/plaintiff had filed the suit for bare perpetual injunction in respect of Panchayat property bearing No.423/1/1 which is a red tile shed situate at Hidakal village measuring South-North 40 feet and East-West 40 feet. It is stated by the plaintiff that suit property was granted by the defendants to the plaintiff in the - 3 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 year 1999. Earlier, plaintiff owned property bearing GPC No.415 measuring East-West 40 feet and South-North 40 feet. Defendants requested the plaintiff to give her property to them as it obstructs the road and agreed to give another open space of the same extent to the plaintiff. Accordingly, the plaintiff gave up her property bearing No.GPC No.415 and in exchange of the same, defendant No.1 by passing resolution, granted suit property i.e., GPC No.423/1/1 to the plaintiff in the year 1999. In the month of January-2000, the plaintiff has constructed a shed with red tiles in the suit property and is running a flourmill by installing 16 HP electric motor in the suit property. The plaintiff is in actual possession and enjoyment of the suit property since January-2000. On 12.04.2005, defendants gave threat to the plaintiff to remove the shed and flourmill from the suit property within two days. Plaintiff requested the defendants not to do illegal acts as she is in settled possession of suit property. However, defendants having not heeded to the request of the plaintiff, the plaintiff is constrained to file the suit. 4. Defendants appeared before the trial Court. Defendant No.2 has not filed written statement. Defendant No.1 has filed - 4 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 written statement contending that allegations and assertions made by the plaintiff in the plaint are false, frivolous, vexatious, misconceived, concocted and same are accordingly denied. Description of the property, as shown by the plaintiff, is specifically denied. It is further stated that defendant No.1 is maintaining property records, wherein it is shown that the property bearing GPC No.423/1/1 situate at Hidkal village is measuring 22’ X 9’, but now the plaintiff is contending that suit property is measuring 40’ X 40’, which is specifically denied. Defendant No.1-Authority has undertaken implementation of “Swachha Gram Yojana” and thereby for formation of road, the property of the plaintiff bearing GPC No.415/A was causing hurdle. Therefore, they requested the plaintiff to give up her right over the property bearing GPC No.415/A and in turn, Authority would allot another property which is equal to the area of property bearing GPC No.415/A. Therefore, the plaintiff agreed for the same and has requested the defendant No.1- Authority to grant an area of open space measuring 22’ x 9’. Accordingly, a meeting was convened on 11.06.2002, in which a Resolution was passed. As per the said Resolution, the name of plaintiff was entered in respect of the property bearing GPC - 5 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 No.423/1 to the extent of 22’ X 9’ and said property was renumbered as property bearing GPC No.423/1/1. In the Panchayat Register, the Property that was granted to plaintiff is specifically shown as measuring 22’ X 9’. The plaintiff is falsely claiming an area of 40’ X 40’ without any basis. On all these grounds, sought for dismissal of the suit. Based on the pleadings, the trial Court has framed the five issues. 5. To substantiate the case of plaintiff, the plaintiff examined three witnesses as PWs1 to 3, fifteen documents were marked as Exhibits P1 to P15. On closure of plaintiff’s evidence, defendants have adduced their evidence as DWs1 and 2 and ten documents were marked as Exhibits D1 to D10. Having heard arguments on both sides, the trial Court has decreed the suit granting permanent injunction against defendants restraining them from removing shed situate on and over the suit property, except by due process of law. Being aggrieved by the Judgment and decree, defendant No.2 has not preferred any appeal. Defendant No.1-Secretary, Grama Panchayat, Hidkal has preferred the appeal in RA No.267/2008 before the Civil Judge (Sr.Dn.), Raibag, and the same came to be allowed by setting - 6 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 aside the Judgment and decree passed by the trial Court. Being aggrieved by the Judgment and Decree passed by the first appellate Court, the appellant/plaintiff has preferred this regular second appeal. 6. As per the order dated 25.03.2010, this Court has formulated the following substantial question of law: “Whether in the facts and circumstances of the case, the first appellate Court was justified in reversing the Judgment and Decree dated 25.01.2007 in O.S.No.82/2005 passed by the Additional Civil Judge (Jr.Dn.), Raibag? 7. The learned counsel for the appellant/plaintiff would submit that the appellant was successful in establishing her lawful possession over the suit property. The appellant had made out her prima-facie case. The appellant was owner and in possession of the GPC No.415 measuring East-West-40 feet and South-North 40 feet situate at Hidkal village. Upon the request of the defendants, the appellant relinquished all her rights with respect to the above said property, in turn, the defendants - 7 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 promised to allot the alternative property. Accordingly, a Resolution was passed on 11.06.2002 allotting the suit property and mutation entry was also effected in the year 2002. After lapse of 3 years, the defendants started disturbing the peaceful possession of the appellant. Hence, appellant filed the suit for permanent injunction. The trial Court has decreed the suit of the plaintiff by restraining the defendants in interfering in the suit property. It is also held that the defendants, without due process of law, cannot dispossess the plaintiff from the suit property. The first appellate Court did not consider the admission made by the defendants with respect to the possession of suit property by the appellant. The Judgment and decree under appeal is opposed to law, facts and evidence on record. The first appellate Court has committed an error in setting aside the judgment and decree passed by the trial Court. Considering the oral and documentary evidence placed by both the parties, the trial Court has properly appreciated the evidence on record and decreed the suit in favour of the plaintiff by giving liberty to the Panchayat authorities to evict the plaintiff with due process of law. However, without proper appreciation of evidence on record, the appellate Court allowed the appeal and - 8 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 the same is liable to be set aside. Accordingly, he sought to allow the appeal. 8. Despite service of notice, respondent remained absent and represented. 9. I have carefully examined the materials placed before me. The plaintiff has filed suit for permanent injunction against the defendant in respect of the suit schedule property. Though the plaintiff has sought for permanent injunction, the trial Court has granted injunction against the defendant restraining them from interfering with the peaceful possession and enjoyment of the suit property and also restraining from removal of shed situate over the suit property by due process of Law. Defendant No.2 has not preferred an appeal against this judgment and appeal passed by the trial court. The plaintiff has also not filed any appeal against the said judgment and decree. It is only the defendant No.1-Secretary, has preferred appeal before the first appellate court. The first appellate Court, at paragraph 17 of its judgment, has observed as under: “17. In the case on hand, the trial court has clearly held that description of the suit property is not correct. It has - 9 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 also answered the Issue No.1 as to the lawful possession of the suit property in the Negative. Under such circumstances whether the trial court is justified in decreeing the suit? The reason assigned by the trial court for granting permanent injunction can be gathered in para-25 of the judgment. In para-25 the trial court has categorically held that" while answering Issue No.1 it is clearly observed that plaintiff is not in lawful possession of entire area measuring 40 X 40 ft with boundaries as described in schedule A of the plaint but action of defendant not in the matter of eviction cannot be justified in law since defendant no.1 official was expected to issue cause notice to the plaintiff prior to the dispossessing her from suit property. There is no doubt on the point that defendant no.1 has to evict the plaintiff from the encroached portion of the suit property only under due process of law and till then plaintiff can protect her possession. But at the same time it is the bounden duty of the plaintiff to prove the description of the suit property so as to enable the identification of the property and due execution of the decree. When the plaintiff has failed to prove that she is in possession of 40 X 40 ft in property No.423/1/1, when it is not made clear that whether the extent of property of 40 X 40 ft is available in GPC.No.423/1/1 and if not in which property number the remaining extent would come has not been clarified then question of granting injunction does not arise. More over plaintiff has accepted the finding of the trial court that plaintiff has failed to prove the description of the property by not preferring any appeal against said finding. Under such circumstances no decree much less a decree for - 10 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 permanent injunction can be granted in respect of the suit property the description of which is not correct. Even plaintiff has not come to the court with a definite case that she has been granted only 22 X 9 ft in GPC.No.423/1/1 and she is in possession of a property in excess of the granted land and she is in possession of the extent totally measuring 40 X 40 ft alleging that she is in settled possession over the remaining extent though not she is the owner of the same. On the other hand plaintiff has come up with a definite case that she has been granted the extent equivalent to that of the extent she has given up in favour of defendant no.1 and further with a definite case that she is in possession of 40 X 40 ft in GPC.No.423/1/1 alleging that she has been granted 40 X 40 ft by defendant no.1 which she could not prove by adducing cogent evidence. The party who seeks equity must come with equity to the court and without suppressing the facts. In the case on hand, plaintiff has failed to prove the description of the suit property and also failed to prove that she is in possession of the extent of 40 X 40 ft in GPC.No.423/1/1. Under such circumstances, the trial court ought to have rejected the prayer of permanent injunction to the plaintiff. On the contrary the trial court misunderstood the principle enunciated in the decision reported in ILR 1999 Karnataka page 301 and applied to the case where description of the suit property itself is not proved. Therefore, as rightly argued by the learned counsel for appellant the grant of permanent injunction by the trial court in favour of plaintiff is erroneous and capricious. Therefore, I am of the opinion that the trial court is not justified in granting the permanent - 11 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 injunction when plaintiff has failed to prove her lawful possession over the suit property and when defendant no.1 has succeeded in proving his contention that the suit property has not been properly described by the plaintiff. Hence, I answer Point No.1 in the Negative.” 10. A perusal of the plaint shows that the plaintiff has shown the schedule as under: Towards East : House of Sadashiv Gajakush Towards West : Road Towards South : Well Towards North : Panchayat open space 11. The defendant No.2 has not disputed the schedule of the property. However, the defendant has admitted in his written statement that there is a record maintained by the defendant No.1-Authority which the property bearing No.423/1/1/ is measuring 22’ x 9'. It is also argued by defendant No.1 that the plaintiff has executed a consent deed. It is also admitted in the written statement that the authority has sanctioned area equal to the area of property GPC No.415/A. Considering the request of the plaintiff, the authority has allotted an area of 22’ x 9' within the property numbering it as 423/1/1 - 12 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 under Resolution No.5 dated 11.06.2002. It is the specific defence of defendant No.1-Authority that the plaintiff is falsely claiming an area of 40' x 40'. This admission made in the written statement by defendant No.1 clearly discloses that defendant No.1 has not disputed the description of the property and he has admitted about the lawful possession of the plaintiff in an area measuring an extent of 22’ x 9'. The only defence of the defendant No.1-Authority is that the defendant is falsely claiming 40' x 40'. The trial Court, on appreciation of evidence and record, has clearly held that the plaintiff is running a flour mill on and over the suit property for which the defendant No.1- Authority, as on the date, has not issued any notice to the plaintiff to remove the structure. The Grama Panchayat has not issued any show cause notice to the plaintiff calling explanation in this regard. Considering all these aspects, the trial Court has observed that the defendant No.1 is at liberty to evict the plaintiff from the area in which the plaintiff is in illegal position. With regard to this observation made by the trial Court, I do not find any error or illegality. On the contrary, the first appellate Court has committed an error in holding that the plaintiff has failed to prove the identification of the property. Though the defendant - 13 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 No.1-Authority has admitted about this in the written statement, the first appellate court has not properly appreciated the evidence on record in accordance with law and facts. The trial court has passed the judgment and decree in favour of the plaintiff with liberty to defendant No.1 to take necessary legal steps to evict the plaintiff from the disputed property, in due process of law. Hence, the first appellate Court was not justified in setting aside the judgment and decree dated 25.02.2007 passed in OS No.82/2025 by the Additional Civil Judge (Jr.Dn.), Raibag. Accordingly, the substantial question of law is answered in the negative. In the result, I proceed to pass the following: O R D E R i) Appeal is allowed; ii) The judgment and decree dated 05.03.2010 passed in RA No.267/2008 by the Civil Judge (Sr. Dn.), Raibag, is set aside; iii) Consequently, judgment and decree dated 25.01.2007 passed in OS No.82/2005 by the Additional Judge (Jr. Dn.) Raibag, is upheld and confirmed; - 14 - HC-KAR NC: 2025:KHC-D:11082 RSA No. 5264 of 2010 iv) Draw decree accordingly; v) Registry to send the copy of this judgment, along with the trial court records to the concerned court. Sd/- (G BASAVARAJA) JUDGE CKK/LNN CT-CMU LIST NO.: 1 SL NO.: 68