- 1 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5695 OF 2013 (INJ) C/W REGULAR SECOND APPEAL NO. 5694 OF 2013 (INJ) REGULAR SECOND APPEAL NO. 5696 OF 2013 (INJ) IN RSA.NO.5695/2013: BETWEEN: 1. SHRI. MAYUR ASHOK POTDAR, AGE: 35 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: HUKKERI – 591 309, DIST: BELAGAVI. 2. SHRI. SIDARAI ASHOK POTDAR, AGE: 33 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: HUKKERI – 591 309, DIST: BELAGAVI. BOTH REPRESENTED BY P. A. HOLDER ASHOK MAHADEV POTDAR, AGE:64 YEARS, OCC:AGRICULTURE & BUSINESS TQ: HUKKERI – 591 309, DIST: BELAGAVI. …APPELLANTS (BY SRI. CHETAN MUNNOLI, ADVOCATE) AND: SHRI. AHMED SHAMSHER MAKANDAR, AGE: 64 YEARS, OCC: AGRICULTURE, R/O: HUKKERI, DIST: BELAGAVI – 591 309. …RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.01.2013 PASSED BY THE SENIOR CIVIL JUDGE HUKKERI IN R.A.NO.23/2012; SET ASIDE THE JUDGMENT AND DECREE DATED 28.03.2012 PASSED BY THE CIVIL JUDGE AND JMFC HUKKERI IN O.S.NO.72/2009; ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 O.S.NO.72/2009 ON THE FILE OF CIVIL JUDGE AND JMF HUKKERI AND ETC., IN RSA.NO.5694/2013: BETWEEN: 1. SHRI. MAYUR ASHOK POTDAR, AGE: 35 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: HUKKERI – 591 309, DIST: BELAGAVI. 2. SHRI. SIDARAI ASHOK POTDAR, AGE: 33 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: HUKKERI – 591 309, DIST: BELAGAVI. BOTH REPRESENTED BY P. A. HOLDER ASHOK MAHADEV POTDAR, AGE:64 YEARS, OCC:AGRICULTURE & BUSINESS TQ: HUKKERI – 591 309, DIST: BELAGAVI. …APPELLANTS (BY SRI. CHETAN MUNNOLI, ADVOCATE) AND: 1. SHRI. AHMED MOHAMMADGOUS BAGWAN, AGE: 49 YEARS, OCC: BUSINESS, R/O: HUKKERI, DIST: BELAGAVI. 2. SHRI. DAWOOD MOHAMMADGOUS BAGWAN, AGE: 43 YEARS, OCC: BUSINESS, R/O: HUKKERI, DIST: BELAGAVI. …RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.01.2013 PASSED BY THE SENIOR CIVIL JUDGE HUKKERI IN R.A.NO.22/2012; SET ASIDE THE JUDGMENT AND DECREE DATED 28.03.2012 PASSED BY THE CIVIL JUDGE AND JMFC HUKKERI IN O.S.NO.74/2009; ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN O.S.NO.74/2009 ON THE FILE OF CIVIL JUDGE AND JMF HUKKERI AND ETC., - 3 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 IN RSA.NO.5696/2013: BETWEEN: 1. MAYUR ASHOK POTADAR, AGE: 35 YEARS, OCC:AGRICULTURE AND BUSINESS, R/O: HUKKERI, DIST: BELAGAVI - 591 309. 2. SHRI. SHIDARAI ASHOK POTADAR, AGE: 33 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: HUKKERI, DIST: BELAGAVI – 591 309. A1 AND A2 ARE REPRESENTED BY THEIR GPA HOLDER, ASHOK MAHADEV POTADAR, AGE:64 YRS, OCC:AGRICULTURE, R/O: HUKKERI, DIST:BELAGAVI - 591 309. …APPELLANTS (BY SRI. CHETAN MUNNOLI, ADVOCATE) AND: 1. SHRI. AHMED MOHAMMADGOUS BAGWAN, AGE: 44 YEARS, OCC: BUSINESS, R/O : HUKKERI – 591 309. 2. SHRI. DAWOOD MOHAMMADGOUS BAGWAN, AGE: 39 YEARS,OCC : BUSINESS, R/O : HUKKERI – 591 309. 3. SHRI. AHAMED SHAMSHER MAKANDAR, AGE : 64 YEARS, OCC : AGRICULTURE, R/O: HUKKERI – 591 309, DIST: BELAGAVI. 4. SHRI. GAJABAR AHAMED MAKANDAR, AGE : 44 YEARS, OCC:AGRICULTURE, R/O : HUKKERI – 591 309, DIST: BELAGAVI. …RESPONDENTS (NOTICE TO R3 AND R4 ARE HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.01.2013 PASSED BY THE SENIOR CIVIL JUDGE HUKKERI IN R.A.NO.25/2012; SET ASIDE THE - 4 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 JUDGMENT AND DECREE DATED 28.03.2012 PASSED BY THE CIVIL JUDGE AND JMFC HUKKERI IN O.S.NO.66/2009; ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN O.S.NO.66/2009 ON THE FILE OF CIVIL JUDGE AND JMF HUKKERI AND ETC., THESE APPEALS, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. These appeals are by the plaintiffs in OS No.66/2009 who were the defendants in OS Nos.72/2009 and 74/2009. For the purpose of convenience, the appellants herein are referred to as the plaintiffs and respondents herein are referred to as defendants. 2. The case of the plaintiffs is that they are the owners in possession of the property bearing CTC No.2417/2 measuring 406 square meters bounded on the east by: property bearing CTS No.2436 and 2437, west by: property bearing CTS Nos.2430 and 2431, north by: property bearing CTS No.4356 and south by: property bearing CTS No.2417/1, which is shown by letters ABCD (C§PÀqÀ) in the plaint hand sketch. The subject matter of the - 5 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 suit is an area shown by letters ABC (C§PÀ) of the plaint hand sketch. 3. It is further case of the plaintiffs is that they purchased property bearing CTS No.2417 under the deed of sale dated 17.03.2006 which was subsequently assigned CTS Nos.2417/1 and 2417/2. That ever since the date of purchase plaintiffs have been in possession and enjoyment of the said property and they being desirous of constructing compound wall around their property, applied for permission from the concerned authorities. Accordingly, on 24.03.2009 they have been issued licence to put up the construction of compound wall. That in furtherance thereof they had collected and stored the required aggregates for the purpose of construction of the compound wall. That the defendants who are in possession of properties on the western side of the property of the plaintiffs have constructed their houses without leaving any set back on the eastern side of their property. That the property of the plaintiffs is surrounded by the buildings - 6 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 on the east, on the north and on the south and it is only on the western side they are required to put up construction of compound wall at the point shown by letters ABC (C§PÀ). When the plaintiffs were in process of putting up of a construction of compound wall at the point ABC (C§PÀ), the defendants obstructed, prevented and threatened the plaintiffs from putting up the compound wall and have also thrown away cement and bricks which were collected and kept for the said purpose by the plaintiffs. Hence, the suit for seeking relief of permanent injunction restraining the defendants of putting up the construction at point letters ABC (C§PÀ) in the plaint sketch. 4. Defendants appeared through their counsel. Defendant Nos.1 to 3 filed written statement which was adopted by defendant No.4 denying the averments and allegations made by the plaintiffs and have contended that plaintiffs obtained the permission from the concerned Town Municipality Council, Hukkeri, (for short, ‘TMC - 7 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 Hukkeri’) for the purpose of construction of a house by using political clout. That their houses are facing towards the eastern side. Defendant Nos.3 and 4 are the owners of the property bearing CTS No.2432, defendant Nos.1 and 2 are the owners of the property bearing CTS Nos.2430 and 2431 and there houses are facing towards the eastern side. That towards the eastern side of their houses there is a public road running towards north to south having width of 13½ feet by the side of the said road there is a gutter having width of 1½ feet. Towards the eastern side of the said road is the property of the plaintiffs. That towards the southern side of the property of the plaintiffs there are some houses facing towards the western side. That by the side of the said road there is a vacant place belonging to defendant Nos.3 to 4. Defendants and their neighbouring house owners are enjoying the said road from the beginning. Defendant Nos.3 and 4 and their ancestors were doing agarbatti business. Previously there was a mud road. That about 7 - 8 months ago, TMC, Hukkeri, reconstructed the said road by converting it into the - 8 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 cconcrete road by utilizing the grant by the Government for the purpose of construction of roads. That the plaintiffs under the political influence are attempting to put up the building and compound wall on the said public road. If the plaintiffs put up such construction, the defendants and other neighbours will be put to hardship. Hence, sought for dismissal of the suit. 5. Defendant No.3 in OS No.66/2009 namely Ahmed Shamsher Makandar has filed a suit in OS No.72/2009 against the said suit. Similarly, defendant Nos.1 and 2 in OS No.66/2009 have filed suit in OS No.77/2009 against the plaintiffs. The pleadings in the said suits are similar to the contention taken by the parties in OS No.66/2009. The Trial Court based on the pleadings framed the following issues: In OS No.66/2009: 1. Whether the plaintiff prove that they are in lawful possession and enjoyment of suit schedule A,B,C spot? 2. Whether the plaintiffs prove that they are legally constructing the compound wall as stated in the plaint? - 9 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 3. Whether the plaintiffs prove the interference of the defendants? 4. Whether the plaintiffs are entitle for the relief sought for in the plaint? 5. Whether the defendants are entitle for the compensatory costs? 6. What order or decree? In OS No.72/2009: 1. Whether the plaintiff proves the existence of suit schedule public road? 2. Whether the plaintiff proves that himself and his neighbours are using and enjoying the suit schedule road as stated in the plaint? 3. Whether the plaintiff proves the interference of defendants? 4. Whether the plaintiff is entitle for the relief sought for in the plaint? 5. Whether the defendants are entitle for the compensatory costs? 6. What order or decree? In OS No.74/2009: 1. Whether the plaintiffs prove the existence of suit schedule road as stated in the plaint? 2. Whether the plaintiffs prove that the defendants are trying to construct the building in the suit schedule property? - 10 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 3. Whether the plaintiffs are entitle for the relief sought for in the plaint? 4. Whether the defendants are entitle for the compensatory costs as prayed for? 5. What order or decree? 6. General Power Attorney holder of the plaintiffs examined as PW1 and 25 documents were marked as Ex.P1 to Ex.P25 and five more witnesses have been examined as PW1 to PW6. Five witnesses have been examined on behalf of the defendants as DW1 to DW5 and got marked 26 documents at Ex.D1 to D26. 7. On appreciation of the evidence, the Trial Court answered issue Nos.1 to 5 in OS No.66/2009 in negative, issue Nos.1 to 4 in OS No.72/2009 in the affirmative and issue Nos.1 to 3 in OS No.74/2009 in the affirmative, while issue Nos.5 and 4 in OS No.72 and 74 of 2009 respectively in the negative and consequently, by its common judgment and decree dated 28.03.2012 dismissed the suit of the plaintiffs in OS No.66/2009 and decreed the suits in OS No.72 and 74 of 2009 granting permanent injunction - 11 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 restraining the plaintiffs (who were the defendants in OS No.72 and 74 of 2009) from constructing any type of building or compound wall in any manner on the suit schedule ABCD (C§PÀqÀ) road. 8. Being aggrieved by the aforesaid common judgment and decree, plaintiffs preferred three regular appeals in RA Nos.25, 22 and 23 of 2012 respectively. The First Appellate Court framed the following common points for its consideration in all the three appeals: 1. Whether the appellants prove the fact that the judgment and decree passed by the Trial court is illegal, improper and not based on proper appreciation and oral and documentary evidence available on record and even proper issues are not framed by the Trial Court? 2. Whether the appellants prove the fact that the judgment and decree passed by the Trial Court is one sided, capricious which is resulted in miscarriage of justice and as such interference of this Court is required for setting aside the same? 3. What order or the decree? 9. On re-appreciation of the matter answered point Nos.1 and 2 in the negative and consequently, dismissed the appeals confirming the judgment and decree - 12 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 passed by the Trial Court. Being aggrieved, the plaintiffs are before this Court. 10. Learned counsel appearing for the appellants / plaintiffs reiterating the grounds urged in the memorandum of appeal submitted that neither of the parties have produced any document to substantiate their contention of existence of the road either on the eastern side of the property of the defendants or on the western side of the property of the defendants. However, he relies upon the photographs produced at Ex.P7, P8 and P9 to contend that the space shown in ABC (C§PÀ) of the hand sketch belonged to the plaintiffs which is now being claimed by the defendants as a public road. 11. He refers to Ex.P1, the sale deed under which the plaintiffs purchased the property to point out that in the schedule shown in the said document there is no road on the western side of their property. That on the western side of the property of the plaintiffs, there exist property bearing CTS No.2431. - 13 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 12. He refers to Ex.P5 which is the sketch issued by the City Survey authorities to contend that on the north, south, east and west of the property belonging to the plaintiffs there are private properties and there is no road as contended by the defendants. 13. He also refers to the plan issued by the Pattan Panchayat, Hukkeri, permitting construction of a house by the plaintiffs and referring to the same he submits that on the western side of his property there lies property bearing CTS Nos.2430 and 2431 and there is no mention of any road even the said document. 14. Thus, referring to the aforesaid documents and the photographs produced as already referred to above, the learned counsel vehemently submits that none of these documents produced by the plaintiffs would any manner whatsoever indicate existence of a road on the western side of their property and submits that the Trial Court and the First Appellate Court have not adverted to these aspects of the matter and have thus, erroneously come to the conclusion of existence of a road as claimed - 14 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 by the defendants. Hence, he submits that the non- appreciation of material evidence produced by the plaintiffs by the Trial Court and the First Appellate Court gives rise to substantial question of law warranting interference in the hands of this Court. 15. Heard perused the records. 16. The ownership and possession of the respective properties by the plaintiffs and the defendants is not in dispute. The issue is only with regard to the portion shown at ABC (C§PÀ) of the plaint hand sketch which according to the plaintiffs is a part of their property while according to the defendants is a part of a public road, which is now converted into concrete road by the TMC, Hukkeri. 17. The Trial Court and the First Appellate Court on appreciation of the material evidence have come to the conclusion with regard to the existence of the said concrete road on the point ABC (C§PÀ) of the plaint hand sketch. For the said purpose, the Trial Court and the First Appellate Court have relied upon the documents namely, - 15 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 Ex.D17, the resolution passed by the concerned Pattan Panchayat granting a sum of Rs.15,00,000/- for the purpose of construction of concrete road, Ex.D18 the estimate prepared and submitted by the said Pattan Panchayat for the purpose of construction of concrete road, Ex.D19 the final Bill and Ex.D20 the completion report of the construction of the cement road. Ex.D5 to 7, 10 and 11 are the photographs wherein, the existence of the concrete road is visible and process of construction of compound wall by the plaintiffs is also seen. 18. That apart PW3 in his deposition has admitted to the existence of the suit schedule concrete road as claimed by the defendants. Thus, based on these material evidence the trial court and the first appellate court have come to the conclusion that the plaintiffs had indeed attempted to put up compound wall and construction on the concrete road formed by the panchayat authorities at the points ABC (C§PÀ) shown in the plaint sketch. - 16 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 19. The aforesaid finding of facts and conclusion arrived by the Trial Court based on the evidence and in the absence of any ground made out with regard to the perversity or absence of any material evidence, this Court in the second appeal in the facts and circumstances of the case is of the considered view that no error or illegality is committed by the Trial Court or by the First Appellate Court. No substantial question of law would therefore arise for consideration. Accordingly, the appeals are dismissed. 20. At this juncture, learned counsel for the appellants/plaintiffs submits that since the plaintiffs are claiming their ownership over the said portion of the property marked by letter ABC (C§PÀ) of the plaint hand sketch, they may be reserved liberty to seek substantial relief. 21. Submission is taken on record. - 17 - HC-KAR NC: 2025:KHC-D:8604 RSA No. 5695 of 2013 C/W RSA No. 5694 of 2013 RSA No. 5696 of 2013 22. Plaintiffs in OS No.66/2009, who are the appellants in these appeals, are at liberty to seek such remedy as may be permissible and available under law. 23. All pending applications, if any, are disposed off accordingly. Sd/- (M.G.S. KAMAL) JUDGE SMM/CT-ASC List No.: 1 Sl No.: 4