- 1 - RSA No. 100075/2025 Reserved on : 05.08.2025 Pronounced on : 03.09.2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 03RD DAY OF SPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REUGLAR SECOND APPEAL NO.100075 OF 2025 BETWEEN: HANAMAPPA @ HANAMANTAPPA S/O. SANJEEVAPPA PUJAR AGE: 74 YEARS, OCC. AGRICULTURE R/O. SHIRUNJ-582103, TQ. AND DIST. GADAG ...APPELLANT (BY SRI. C.S. SHETTAR AND SMT. KAVYA C. SHETTAR, ADVOCATES) AND: MAHADEVAPPA S/O. ISHWARAPPA PYATI AGE: 49 YEARS, OCC. AGRICULTURE R/O. SHIRUNJ-582103 TQ. AND DIST. GADAG. …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO, ADMIT THE APPEAL AND CALL FOR THE RECORDS OF THE COURTS BELOW AND ALLOW THE APPEAL SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.66/2024 DATED 28.10.2024 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE COURT AND JUDICIAL MAGISTRATE FIRST CLASS AT GADAG, AND THE JUDGMENT AND DECREE PASSED BY LEARNED PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GADAG, IN OS NO.112/2020 DATED 20.06.2024 AND THEREBY DECREE THE SUIT FILE BY THE APPELLANT/PLAINTIFF IN O.S.NO.112/2020 AND ETC. IN THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND RESERVED ON 05.08.2025 AND COMING ON FOR “PRONOUNCEMENT OF ORDERS”, THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.09.04 12:46:35 +0530 - 2 - RSA No. 100075/2025 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The captioned second appeal is filed by the unsuccessful plaintiff who is questioning the concurrent Judgment of the Courts below in dismissing the suit filed by the plaintiff. 2. For the sake of convenience, the parties herein are referred to as per their rank before the trial Court. 3. Brief facts leading to this appeal are that the plaintiff filed suit for permanent and mandatory injunction to grant decree, restraining the defendant from causing obstruction in the smooth use and enjoyment of passage shown in red ink arrow in the hand sketch map and also sought for mandatory injunction against the defendant to remove the illegal Katta put up with boulders and mud shown by letters in red ink as ‘WXYA’ in the hand sketch map. 4. It is stated in the plaint that the suit property is a house bearing Panchayat No.208 situate at Shirunj Village, Taluk and District Gadag. The suit property morefully shown by letters ‘ABCDEF’ in the plaint and sketch map. The small room appurtenant to the ‘ABCD’ House is shown by letters ‘EFDZ’. The Door of the plaintiff is shown by letters ‘D1’. The suit - 3 - RSA No. 100075/2025 property Panchayat No.207 of the same village is morefully shown by letters ‘JKLM’ in the plain hand sketch map. The small Katta appurtenant to ‘JKLM’ house shown by letters with red ink as ‘WXYZ’ in the suit property, against which the relief is sought by the plaintiff. The door of the defendant is shown by letters ‘D2’. It is averred in the plaint that the plaintiff is the owner in possession of suit 1A house and the defendant is the owner in possession of the suit 1B house. The plaintiff has the door D1 for ingress and egress from a small passage shown by the redline to reach the western main Panchayat Road. The plaintiff and his family members have no alternative passage to reach the Western Panchayat Road from the Door of D1. The said passage is in existence since time in Memorial. The defendant being political influential person, along with his henchmen, has constructed an illegal Katta with stones and mud on the ground the said Katta is useful for the repair of his house and promised the plaintiff that he would remove the same when the repair works of the roof gets over. Therefore, the plaintiff, by heeding to the words of defendant, kept quite on the ground that the defendant would remove the said illegal Katta. The defendant has absolutely no occasion to use the said Katta and made obstruction for the use and enjoyment of - 4 - RSA No. 100075/2025 the passage shown in the map. The said illegal katta has caused great trouble and obstacle for the use and enjoyment of the passage for ingress and egress of the plaintiff and the plaintiff family is prevented from using the said passage for their day-to-day works. Therefore, the plaintiff has filed the suit. 5. In response to summons, defendant remained absent and hence placed exparte. 6. Initially, the suit came to be partly decreed and the respondent/defendant preferred an appeal in RA No.40 of 2021 before the Principal Senior Civil Judge, Gadag. Thereafter, as per the Judgment and decree passed in the said appeal, the matter was remanded back to the trial Court with direction to give an opportunity to the defendant. Accordingly, after receipt of the entire file, defendant appeared and filed his written statement contending that the suit property originally belongs to Mallappa the brother of plaintiff’s father and he has sold his property to the respondent/defendant and at the time of sale transaction, he told that the said Katta is based on the foundation of the property and if the said Katta is demolished that entire wall will collapse. It is also contended by the - 5 - RSA No. 100075/2025 defendant that this village is located downhill where ground- water is very near to the foundation of the property and during the rainy season, the groundwater increases and at that situation to construct the foundation wall a big boulder has to be fixed on the foundation in order to avoid leakage of water from the foundation. It is also contented that in order to maintain the balance on the said stones, some heavy items have been put on the said foundation which has been misconceived by the appellant-plaintiff and is described as Katta. The plaintiff has failed to understand the difference between the Katta and foundation wall. Further, he has denied all other averments made in the plaint and sought for dismissal of suit. 7. Based on the pleadings, the trial Court has framed eight issues. To prove the case of the plaintiff, plaintiff himself got examinef as PW1 and maarked documents as Exhibits P1 to P8. On closure of plaintiff’s side evidence, on behalf of defendant, two witnesses were examined as DWs1 and 2 and marked one document as Exhibit D1. Having heard the arguments on both sides, the trial Court dismissed the suit with costs. Being aggrieved by the Judgment and decree of the trial - 6 - RSA No. 100075/2025 Court, the plaintiff has preferred appeal before the appellate Court in RA No.66 of 2024, which came to be dismissed with costs on 28th October 2024. Being aggrieved by the judgments of both the Courts, the appellant has preferred this second appeal. 8. Sri C.S. Shettar, learned Counsel appearing on behalf of Smt. Kavya V. Shettar for the appellant, would submit that the both the Courts have not assigned cogent or acceptable reason in the Judgments. The Courts below have completely erred and approached the matter entirely on an entirely different angle without looking into the pleadings, documents and evidence and hence the Judgment and decree pass by both the Courts below are liable to be set aside. He would further submit that though the trial Court has rightly answered issues 1 and 2 in the affirmative holding that there is panchayat Road towards the western side of the house of the defendant and the plaintiff is using the passage shown by red arrow mark in hands sketch map to reach the Western Main Panchayat Road from the beginning, however, the trial Court has committed error in answering issues 3 and 4 in the negative, and issue No.five in the affirmative. The trial Court, only on the basis of admission - 7 - RSA No. 100075/2025 of the plaintiff that the suit property, as of now, is in the same position as it was at the time of purchase of the property by the grandfather of the defendant, has shifted the entire blame on the plaintiff that he should have constructed his house keeping in mind the ingress and egress towards the Panchayat Road. The trial Court has erred in accepting the contention of the defendant that the Katta was part of the property purchased by his grandfather and it was constructed by original owner Mallappa about 70 years back and it is a foundation to wall and suppose if the set Katta is removed, the entire wall will collapse. 9. However, on plain reading of Exhibit D1, no such words appear as stated by DW1. In fact, it is clearly mentioned in exhibit D1 that the property was an open place and house property, and there is no reference as to Katta whatsoever. 10. The trial Court has overlooked the admission of DW1 that no Katta appears in the recital of exhibit D1. DW1 had admitted the six photographs in his cross-examination marked as Exhibits D9 to D14. DW1 also agrees to the suggestion that only if the soil is removed, then only it will be convenient to identify whether the Katta is related to foundation or not as contended by him. However, the trial Court erroneously - 8 - RSA No. 100075/2025 suggested the plaintiff can pass through a one feet stone way at the edge of the stone and soil and there is no need to remove the katta as it is part of the property of the defendant and even in Exhibit D1 there is no reference to the said Katta being the part of the property. On all these grounds it is sought to admit the appeal by framing substantial question of law. 11. On perusal of pleadings, evidence and upon appreciation of entire evidence on record, in my considered opinion, the Courts below have properly appreciated the evidence on record in accordance with law and facts. No substantial question of law would arise for consideration in this appeal. Accordingly, I proceed to pass the following: O R D E R i) Being devoid of merits, appeal stands dismissed at the stage of admission itself. ii) Pending applications, if any, also stand disposed of. Sd/- (G BASAVARAJA) JUDGE lnn CT-CMU