- 1 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 1165 OF 2025 (INJ-) BETWEEN: 1. SHEKARAPPA S/O NARAYANASWAMY AGED ABOUT 67 YEARS AGRICULTURIST AMARAVATHI CAMP HASUDI VILLAGE NIDIGE HOBLI SHIVAMOGGA TALUK-577 222. 2. VENKATESHA S/O SIPAYI CHINNAPPAIAH AGED ABOUT 57 YEARS AGRICULTURIST AMARAVATHI CAMP HASUDI VILLAGE NIDIGE HOBLI SHIVAMOGGA TALUK-577 222. …APPELLANTS (BY SRI. PATIL DAYANAND SUBRAYA GOUDA, ADVOCATE) AND: 1. SMT. KANAKAMMAL W/O LATE ARMUGAM S/O. KANDASWAMY SINCE DEAD BY HER LRS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 1(a) SMT. SHANTHAMMA D/O LATE ARMUGAM AGED ABOUT 62 YEARS 1(b) SMT.MERY D/O LATE ARMUGAM AGED ABOUT 58 YEARS 1(c) SMT. ROJAMMA D/O LATE ARMUGAM AGED ABOUT 56 YEARS 1(d) SRI. JOSEPH S/O LATE ARMUGAM AGED ABOUT 54 YEARS ALL ARE R/AT 2ND CROSS VIDYANAGARA SHIVAMOGGA-577 201. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 9.04.2025 PASSED IN R.A.NO.75/2023 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC, SHIVAMOGGA., DISMISSING THE APPEAL AND CONFIRMING JUDGMENT AND DECREE DATED 16.08.2023 PASSED IN O.S.NO.551/2015 ON THE FILE OF C/C I ADDITONAL CIVILJUDGE AND JMFC, SHIVAMOGGA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellants. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The factual matrix of case of the plaintiff while seeking the relief of permanent injunction is that suit schedule property was granted in favour of husband of the plaintiff one K. Armugum vide order dated 20.04.1983 in LND SR 46/82-83 by the Assistant Commissioner, Shivamogga Taluk. The grant certificate was also issued by the Tahsildar on 11.07.1983 with the condition non-alienation. It is also the contention that after the death of her husband, she succeeded as class-I heir, accordingly the plaintiff and her children are in possession of the suit schedule property and khatha was mutated in the name of the plaintiff. Accordingly, the plaintiff is growing wet crops like paddy since from the year 1988. It is also the contention that defendants without any right, title or interest tried to trespass the suit schedule property on 17.07.2015 and - 4 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 the same is resisted by the plaintiff. Hence, filed the suit for the relief of permanent injunction. 4. The defendants appeared and filed their written statement contending that they have been in settled possession, cultivation and enjoyment of the agricultural land measuring to an extent of 1 acre each in Sy.No.135 of Hosudi Village, Shivamogga. As per ‘A’ and ‘B’ written statement schedule property, they have been in possession of the property and plaintiff's land lies on the southern side of the written statement Schedule ‘B’ property. But, she is not in possession of the suit schedule property. It is further submitted that plaintiff neither the owner nor in possession of the suit schedule property. Hence, prayed the Court to dismiss the suit. 5. The plaintiff, in order to prove the case, examined herself as P.W.1 and got marked the documents as Exs.P1 to P60. On the other hand, defendant No.2 examined himself as D.W.1 and got marked the documents as Exs.D1 to D8 and also examined a witness as D.W.2. - 5 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 6. The Trial Court having reassessed both oral and documentary evidence, particularly taking note of the documents produced by the plaintiff as well as the answer elicited from the mouth of D.W.1 which is extracted in paragraph No.34, wherein he categorically admitted that plaintiff is in possession of the property in Sy.No.135 and also with regard to the location of the property, there is a clear admission that said 3 acres of land is located on the road which leads to Hosudi to Honnavilege after the land of Karim Sab, Shankara, Shekharappa, Ananda and thereafter, suit schedule property is located and also confronted the document of encumbrance certificate and admission is also given with regard to possession in paragraph No.34 in detail. The Trial Court also considered the evidence of D.W.2 and he also admits possession of the plaintiff over the suit schedule property and hence, the Trial Court comes to the conclusion that plaintiff has established possession and the same is observed in paragraph Nos.37 and 38 and answered the issue No.1 as ‘affirmative’. 7. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate - 6 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 Court in R.A.No.75/2023. The First Appellate Court also having reassessed both oral and documentary evidence available on record, particularly raised the point for consideration with regard to possession is concerned and in paragraph No.18 taken note of the documents of plaintiff and also the revenue records changed in the name of K. Armugam and then from K.Armugam to his wife and the said K. Armugam died in the year 1988 and thereafter, P.W.1 has produced M.R.No.1/89-90 and also the document issued by the Tahsildar in terms of Ex.P2 and the extent of land granted is to the extent of 3 acres. Though an attempt is made before the Trial Court to state that only ½ acre of land was in possession of the plaintiff and not granted 3 acres of land and contend that defendants are in possession of the property, the same is not accepted by the Trial Court. The First Appellate Court in detail discussed the same in paragraph No.19, particularly considering the admission of D.Ws.1 and 2 that suit schedule property has been granted in favour of K. Armugam and plaintiff is in possession of the suit schedule property and also with regard to defence also discussed in paragraph No.20 and dismissed the - 7 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 appeal. Being aggrieved by the concurrent finding, present second appeal is filed before this Court. 8. The main contention of learned counsel for the appellants before this Court is that even though Commissioner was appointed at the instance of plaintiff, the Commissioner's report was not taken on record and the same is kept in abeyance and the Trial Court ought to have considered the report submitted by the Commissioner before assigning reasons. The Counsel would vehemently contend that both the Courts erred in decreeing the suit of the plaintiff without looking into the Commissioner's report and very identity of the property is in dispute. Hence, this Court has to admit the second appeal and frame substantial question of law. 9. Having heard learned counsel for the appellants and also on perusal of material, particularly pleadings of the plaintiff and defendants, specific pleading was made by the plaintiff that property was granted in favour of K. Armugam to the extent of 3 acres and revenue records are also changed in his name and after the death of K. Armugam in the year 1988, property was transferred in the name of his wife and other documents clearly - 8 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 reveal that plaintiff is in possession. The Trial Court also taken note of answer elicited from the mouth of D.W.1 and the same is extracted in paragraph No.34 and so also D.W.2 admitted possession of plaintiff. When such being the case, the plaintiff has also relied upon the documents of Exs.P1 to P60 before the Court with regard to certified copy of the Saguvali Register, Encumbrance Certificate, 11 Tax Paid Receipts and Mutation Register, Agriculture Pass book, Patta book and receipt book in respect of the property is concerned and also 9 photographs. Though, the defendants rely upon copy of Farm No.11, M.R.No.H16 and order passed by the Tahsildar, the same is not in respect of the suit schedule property. 10. Learned counsel for the appellants would vehemently contend that only to an extent of ½ an acre, the plaintiff is in possession and the same is not the case of D.W.1 while giving the evidence before the Court and he categorically admitted that plaintiff is in possession of the suit schedule property and an attempt is also made by examining the witness D.W.2 by filing an affidavit stating that only to an extent of ½ an acre, the plaintiff is in possession of the property and the - 9 - HC-KAR NC: 2025:KHC:53224 RSA No. 1165 of 2025 same is also not substantiated by producing any evidence and D.W.2 also admitted the possession of the plaintiff. When both the Trial Court and First Appellate Court considered the material and not found any perversity, question of admitting the second appeal by invoking Section 100 of CPC does not arise and both the question of fact and question of law are considered by the Trial Court and the First Appellate Court. Hence, not a case to admit the second appeal and frame any substantial question of law. 11. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 48